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Citation
"Social Spending, Constitutional History.” By James D. Agresti. Just Facts, December 5, 2007. http://justfacts.com/socialspending.asp
Introductory Notes:
This is the first in a series of topics that will form our research on the issue of social spending. Future topics will include wide-ranging data and facts about federal, state and local expenditures, political stances, socioeconomic matters, media coverage, and fraud and waste.
This page contains comprehensive and scholarly details about the Constitutional history of social spending. For essential facts, click here. For a shorter list of basic facts, click here.
Social Spending – Constitutional History
* The U.S. Constitution is the supreme legal authority in the United States. It is the written pact that established the U.S. government and vested it with certain powers. All Presidents, governors, and federal/state judges and legislators are “bound by Oath or Affirmation, to support” it.[1] [2]
* During the convention at which the Constitution was established, Roger Sherman, a delegate from Connecticut and signatory to the Declaration of Independence, alleged that the principal duties of a national government are to defend against foreign danger and internal uprisings, establish treaties, and regulate/tax trade with foreign nations.[3] [4] James Madison, who later authored the Bill of Rights and became known as the ‘Father of the Constitution’ for his central role in its formation,[5] [6] responded that these were all “important and necessary objects,” but they must be combined with “providing more effectually for the security of private rights and the steady dispensation of Justice.” He said that violations of these ideals “had more perhaps than any thing else, produced this convention.” [7]
* Continuing, Madison stated that all civilized societies are “divided into different Sects, Factions, and interests,” and “where a majority are united by a common interest or passion, the rights of the minority are in danger.” He asserted that this was the cause of slavery, which he referred to as “the most oppressive dominion ever exercised by man over man.” Among other “unjust laws” he ascribed to this cause were those that allowed borrowers to defraud their creditors and those that targeted certain types of properties with disproportionate taxes. Concluding, he stated it was the duty of the convention to frame a system of government that would protect the rights of the minority from the will of the majority.[8]
* Towards this end, the framers of the Constitution developed a system of checks and balances on the powers of the government that they formed.[9] Guarding this system while giving it flexibility is Article V, which allows the Constitution to be amended via supermajority votes in either of the following manners:
1) By a proposal passed by two-thirds of the Senate and House of Representatives, followed by approval of three-quarters of the states.
2) By a proposal made at a convention requested by two-thirds of the states, followed by approval of three-quarters of the states.[10]
* In his farewell address to the nation, George Washington, the president of the Constitutional Convention and the first U.S. President,[11] [12] stated:
“If in the opinion of the People the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” [13]
* After the Constitution was signed by the framers, it was submitted to the individual states for ratification. Written into the Constitution is the condition that it would only be binding on the states that ratified it, and would not become effective until at least nine of the states did so.[14] [15] During this ratification process, which lasted for three years,[16] there was opposition to the Constitution on several grounds, one of which was that it concentrated too much power in the hands of the federal government.[17] [18] [19]
* In an effort to build support for the proposed Constitution,[20] three prominent statesmen collaborated in a series of essays known as the Federalist Papers, which explained the Constitution and addressed objections to it. They were initially written to the people of New York and appeared in New York newspapers, but were later assembled into book form and published throughout the states. The three authors were Alexander Hamilton (delegate from the state of New York and later the first Treasury Secretary of the U.S.), James Madison (delegate from the state of Virginia and later the fourth President of the U.S.), and John Jay (former president of the Continental Congress and later the first chief justice of the Supreme Court).[21] Although the Federalist Papers were written by three individuals, all were signed with a single pen name, “Publius.” The book version of the Federalist Papers was edited by Alexander Hamilton, and the author’s name was given as “a Citizen of New-York.” [22]
* Several of the objections voiced against the Constitution pertained to Article I, Section 8, which reads:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
[The next fifteen clauses are like the one above in that they grant specific powers to the federal government such as regulating commerce with foreign nations, coining money, enacting immigration and bankruptcy laws, establishing federal courts and Post Offices, issuing patents and copyrights, declaring war, raising armies, and governing Washington D.C. and other federal properties.];
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.[23]
* One of the objections to this article was that the phrase, “provide for the common Defense and general Welfare,” gave the federal government broad powers to do whatever it felt was appropriate towards these ends.[24] In Federalist Paper 41, James Madison addressed this objection by stating that the phrase applied to and was limited by the specific powers detailed in the clauses that followed it (such as coining money, establishing federal courts, etc.). He said that to interpret the Constitution in any other way was “an absurdity.” He also wrote:
“Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.” [25]
* In Federalist Paper 33 (January 3, 1788), Alexander Hamilton addressed the objection that the last clause of Article 8, which grants the authority to make “all Laws” needed to carry out the powers vested in the Constitution, gave the federal government too much unrestricted power.[26] In response, Hamilton wrote that the clause was “perfectly harmless” and only served to declare “a truth” that is a natural consequence of forming “a federal government and vesting it with certain specified powers.” He also wrote that it was an exaggeration to refer to this language as “sweeping,” and “if there is any thing exceptionable, it must be sought for in the specific powers upon which this general declaration is predicated.” [27]
* Between December 1787 and January 1791, the Constitution was ratified by all of the states.[28] Eleven months after the last state ratified it, Alexander Hamilton wrote a letter in which he asserted that the phrase “general Welfare” granted authority to the federal government beyond the specific powers detailed in Article 8. He said that this phrase was “as comprehensive as any that could have been used” and it “embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.” [29]
* This stance precipitated a clash that led to the formation of the first two political parties in the United States: the Federalists led by Alexander Hamilton, and the Republicans led by James Madison and Thomas Jefferson, the primary author of the Declaration of Independence and third President of the U.S. (The Republicans later came to be called the ‘Democratic-Republicans’, and the modern Democratic Party traces their roots to this party, citing Thomas Jefferson as “the first Democratic President.”) [30] [31] [32] [33] [34] [35] [36]
* Conflict regarding the interpretation of the “general Welfare” clause spilled over into the 1800’s, during which it was a recurring issue whether or not the federal government had the authority to subsidize various projects on the grounds they promoted the general welfare. The name used for such activities was ‘internal improvements’, and this entailed items such as building roads and constructing canals on lands that were not federally owned.[37] [38]
* In 1817, James Madison, as President of the United States, vetoed an act “to set apart and pledge certain funds for internal improvements.” In doing so, he stated that the federal government did not have this power and to allow for it would require a distorted interpretation of the Constitution.[39] [40]
* When Madison vetoed this act, Thomas Jefferson wrote a letter praising this action and stating it was always “our tenet” that Congress does not have
“unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated.”
Jefferson also wrote he thought it was “fortunate” that Madison had the opportunity to veto such a bill because it
“will settle forever the meaning of this phrase, which, by a mere grammatical quibble, has countenanced the General Government in a claim of universal power.” [41] [42]
* In 1824, John Quincy Adams was elected President of the United States. While in office, he proposed and signed various laws that appropriated federal funds for building roads, improving harbors, and subsidizing the arts and sciences.[43] [44] [45] While campaigning for President, he wrote the following to a voter who had asked about his view on internal improvements:
“I offered, in the Senate of the United States… the first resolution, as I believe, that ever was presented to Congress, contemplating a general system of internal improvement. … [A]lthough highly respecting the purity of intention of those who object, on constitutional grounds, to the exercise of this power, it is with heartfelt satisfaction that I perceive those objections gradually yielding to the paramount influence of the general welfare.” [46]
* In 1844, Democrat James Polk was elected President of the United States.[47] The argument was then being made that the following language in Article 8 of the Constitution gave the federal government authority to spend money on improving harbors and rivers:
“The Congress shall have Power … To regulate Commerce… among the several States…” [48] [49]
* In a message to Congress, Polk responded that “to regulate commerce”
“does not mean to make a road, or dig a canal, or clear out a river, or deepen a harbor… To “regulate” admits or affirms the pre-existence of the thing to be regulated. … It confers no creative power… If the power to regulate can be legitimately construed into a power to create or facilitate …, it is impossible for the human mind to fix on a limit to the exercise of the power other than the will and discretion of Congress.” [50]
* In 1848, the Democratic Party adopted a platform stating that the “federal government is one of limited powers” and
“the Constitution does not confer upon the general government the power to commence and carry on a general system of internal improvements.” [51]
* Three weeks after this platform was adopted, Abraham Lincoln, who was at the time a U.S. Congressman and a member of the Whig Party, gave a speech criticizing the Democratic Party’s stance on this issue. He briefly reviewed the opinions of past Presidents and jurists both pro and con, noted that the matter has not yet been brought under judicial consideration, and asserted there was no reason to worry about the constitutionality of such acts. He also stated:
“I wish now to submit a few remarks on the general proposition of amending the Constitution. As a general rule, I think we would do much better to let it alone. No slight occasion should tempt us to touch it. Better not take the first step, which may lead to a habit of altering it.” [52]
* In 1856, Abraham Lincoln joined a new party that had been formed two years earlier on the basis of opposition to slavery.[53] [54] The name ‘Republican’ was chosen for the party because the founders of it considered their principles to be aligned with that of Thomas Jefferson and the party he originally formed.[55] [56] The first Republican platform (1856) called for “restoring the action of the Federal Government to the principles of Washington and Jefferson.” It also stated that
“appropriations by Congress for the improvement of rivers and harbors, of a national character, required for the accommodation and security of our existing commerce, are authorized by the Constitution, and justified by the obligation of government to protect the lives and property of its citizens.” [57] [58]
* In 1887, Congress passed a bill to supply seeds to drought-stricken farmers in Texas. Democratic President Grover Cleveland vetoed it, stating:
“I feel obliged to withhold my approval of the plan as proposed by this bill, to indulge a benevolent and charitable sentiment through the appropriation of public funds for that purpose. I can find no warrant for such an appropriation in the Constitution…” [59]
* In 1900, the Republican Party adopted a platform that voiced approval for “the improvement of the roads and highways,” but referred the matter to the states.[60]
* In 1900, the Democratic Party adopted a platform stating that the President and Congress derived their “existence” and “powers” from the Constitution and denounced the idea that they could “exercise lawful authority beyond it or in violation of it.” It also criticized a Republican-backed subsidy for the shipping industry and called for a “return to the time-honored Democratic policy of strict economy in governmental expenditures.” [61]
* In 1932, Franklin Delano Roosevelt, the Democratic governor of New York, was elected President of the United States.[62] The Great Depression had begun in 1929,[63] and upon accepting the nomination of the Democratic Party, Roosevelt promised a “new deal” for Americans. This entailed the elimination of nonessential government functions, an increase in government projects to stimulate employment, shortened working hours, and increased prices for agricultural goods to benefit the farming industry. In this acceptance speech, Roosevelt stated:
“I know something of taxes. For three long years I have been going up and down this country preaching that Government—Federal and State and local—costs too much. I shall not stop that preaching.
…
I say that while primary responsibility for relief rests with localities now, as ever, yet the Federal Government has always had and still has a continuing responsibility for the broader public welfare.” [64] [65]
* As President, Roosevelt proposed a variety of bills to Congress. The House and Senate contained large Democratic majorities and passed most of Roosevelt’s proposals.[66] [67] [68] This included, among other measures, the formation of 21 new federal agencies,[69] money for people with financial hardships,[70] money for federal housing projects,[71] the formation of the Social Security program,[72] government projects that employed millions of people, [73] payments to farmers to decrease their output so as to raise the prices of agricultural goods,[74] [75] and low interest loans to help individuals in paying their mortgages.[76] [77]
* Much of this legislation was challenged in court, and between January 1935 and May 1936, the Supreme Court ruled on ten such major cases. In eight of these, the laws were stricken down in part or entirety for overstepping the bounds of power granted to the federal government in the Constitution.[78] Four of the nine justices generally ruled against the New Deal programs, three generally ruled in favor of them, and two of the justices were swing votes.[79]
* In Carter v. Carter Coal Company, the Supreme Court (voting 6-3) struck down a federal law that placed taxes on coal, fixed coal prices, paid money to coal producers who agreed to follow federal edicts, and established provisions for industry-wide wage requirements.[80] The majority ruling stated that the Constitutional Convention
“declined to confer upon Congress power in such general terms; instead of which it carefully limited the powers which it thought wise to entrust to Congress by specifying them, thereby denying all others not granted expressly or by necessary implication. It made no grant of authority to Congress to legislate substantively for the general welfare… It is safe to say that if, when the Constitution was under consideration, it had been thought that any such danger lurked behind its plain words, it would never have been ratified.” [81]
* In Schechter Poultry Corporation v. United States, the Supreme Court unanimously struck down a law that gave the President the power to enact separate “codes of fair competition” for wide-ranging industries and trades. This included the authority to fix the prices of goods and services, set minimum wages, set maximum working hours, and at the discretion of the President, revoke the business license of anyone he judged to be incompliant with these codes.[82] [83] [84]
* Seven of the nine justices joined in the majority ruling, and the two remaining justices concurred with differing language. In this decision, the majority cited the Tenth Amendment, which affirms that any powers not granted to the federal government by the Constitution belong to the States or to the people. The ruling stated:
“Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants. … Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry. … It is not the province of the Court to consider the economic advantages or disadvantages of such a centralized system. It is sufficient to say that the Federal Constitution does not provide for it.” [85]
* Four days after this decision was issued, Roosevelt held a press conference in which he asserted that the “implications of this decision are much more important than certainly any decision of my lifetime or yours,” and that the Supreme Court had “relegated” the U.S. to a “horse and buggy” interpretation of the Constitution. When a reporter asked him if there was any suggestion as to how to resolve the matter outside of a Constitutional Amendment, Roosevelt replied: “No; we haven’t gotten to that yet.” [86]
* Four months before this press conference, Roosevelt’s Secretary of the Interior, Harold L. Ickes, recorded the following in his diary:
“The Attorney General went so far as to say that if the Court went against the Government, the number of justices should be increased at once so as to give a favorable majority. As a matter of fact, the President suggested this possibility to me during our interview on Thursday, and I told him that is precisely what ought to be done.” [87]
* The following year, Roosevelt won reelection by a broad margin and the Democratic Party expanded its majorities in the House and Senate.[88] [89] After his term began, Roosevelt proposed a bill that would have granted him provisions to appoint up to six more justices to the Supreme Court.[90] [91] [92] At the press conference in which he announced this proposal, he stated:
“Our difficulty with the Court today rises not from the Court as an institution but from the human beings within it.”
He also stated that the framers of the Constitution gave Congress “ample broad powers” to provide for the “general welfare,” and that the Court was
“reading into the Constitution words and implications which are not there, and which were never intended to be there.” [93]
* Seven years before this, as the governor of New York, Roosevelt stated:
“It must be obvious that almost every new or old problem of government must be solved… by each State in its own way. There are many glaring examples where exclusive Federal control is manifestly against the scheme and intent of our Constitution.” [94]
* In the four months after Roosevelt proposed his bill to alter the composition of the Supreme Court,[95] the Court ruled in six cases concerning New Deal legislation. In all of these decisions, the Court voted to uphold the acts under consideration. Five of these cases were decided by a 5 to 4 margin, with the two swing justices casting the determinative votes.[96] [97] [98] [99] [100] [101] [102]
* In Stewart Machine Company v. Davis, the Supreme Court (voting 5-4) upheld a federal law imposing new taxes that were ultimately given to unemployed people.[103] [104] In this decision, the majority cited unemployment statistics and stated:
“It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed and their dependents is a use for any purpose narrower than the promotion of the general welfare. … The parens patriae [Latin for “parent of the country”] has many reasons—fiscal and economic as well as social and moral—for planning to mitigate disasters that bring these burdens in their train.”
The two swing justices, Charles Evan Hughes and Owen J. Roberts joined in this decision.[105] [106]
* One year earlier, Justice Roberts joined in a decision that stated the Constitution
“made no grant of authority to Congress to legislate substantively for the general welfare…” [107]
One year before this, Justice Roberts joined in a decision written by Justice Hughes that stated:
“Extraordinary conditions do not create or enlarge constitutional power.” [108]
* In the same month that the last of these decisions was issued, one of the justices who generally ruled against the New Deal programs announced his retirement. The next month, Roosevelt’s bill to add justices to the Supreme Court was defeated in the Senate Judiciary Committee by a vote of 10 to 8.[109] [110] Seven of the ten Senators voting against this bill were Democrats.[111]
* Over the next two years, all of the justices that generally found the New Deal programs to be unconstitutional either retired or passed on.[112] In 1938, Roosevelt stated:
“We obtained 98 percent of all the objectives intended by the Court plan.” [113]
* By 1944, seven of the nine justices on the Supreme Court had been appointed by Roosevelt.[114] Over the next half century, the Supreme Court did not rule any major social spending program to be unconstitutional.[115]
* In 2006, the federal government spent more than $1.5 trillion on housing and community services, health, recreation and culture, education, disability benefits, retirement benefits, welfare and social services, and unemployment benefits. [116]
Footnotes
[1] The Constitution of the United States. Signed September 17, 1787. http://www.archives.gov/national-archives-experience/charters/constitution.html
Article 6, Clause 2:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Article VI, Clause 3:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Article 1, Section 2, Clause 8: “Before he enter on the Execution of his Office, [the President] shall take the following Oath or Affirmation…:--“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
[2] The Federalist Papers. By Alexander Hamilton, John Jay and James Madison. October 27, 1787- May 28, 1788. http://www.gutenberg.org/dirs/etext98/feder10a.txt
Federalist Paper 1, By Alexander Hamilton. October 27, 1787:
“AFTER an unequivocal experience of the inefficiency of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”
Federalist Paper 2, By John Jay, Alexander Hamilton. October 31, 1787:
“Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers. It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government.”
[3] Article: “Sherman, Roger.” Contributor: Jere Daniell (Ph.D., Former Professor of History, Dartmouth College). World Book Encyclopedia, 2007 Deluxe Edition.
“the only person who signed all four of these great documents: the Articles of Association (1774), the Declaration of Independence (1776), the Articles of Confederation (1777), and the Constitution of the United States (1787).”
During the Constitutional Convention of 1787, Sherman presented the Great Compromise, sometimes called the Connecticut Compromise. It resolved the differences between the large and small states on representation in the national legislature.”
[4] Book: The Debates in the Federal Convention of 1787, which framed the Constitution of the United States of America, reported by James Madison, a delegate from the state of Virginia. Edited by Gaillard Hund and James Brown Scott. Oxford University Press, 1920. http://www.yale.edu/lawweb/avalon/debates/debcont.htm
June 6, 1787. Roger Sherman:
“The objects of the Union, he thought were few. 1. defence agst. foreign danger. 2. agst. internal disputes & a resort to force. 3. Treaties with foreign nations. 4. regulating foreign commerce, & drawing revenue from it. These & perhaps a few lesser objects alone rendered a Confederation of the States necessary. All other matters civil & criminal would be much better in the hands of the States. The people are more happy in small than large States. States may indeed be too small as Rhode Island, & thereby be too subject to faction. Some others were perhaps too large, the powers of Govt. not being able to pervade them. He was for giving the General Govt. power to legislate and execute within a defined province.”
[5] Book: The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties. Edited by Patrick T. Conley & John P. Kaminski. Madison House Publishers, 1992. Pages 461-514: “The Bill of Rights: A Bibliographic Essay.” By Gaspare J. Saladino. Page 484:
“The best historical treatments of the legislative history of the Bill of Rights in the first federal Congress are… [six works mentioned]. All agree that James Madison, against considerable odds, took the lead in the House of Representatives, and that without his efforts there probably would have been no Bill of Rights. Madison’s amendments, a distillation of those from the state conventions (especially Virginia’s) were, for the most part, those that the House eventually adopted.”
[6] Article: “Madison, James.” Contributor: Robert J. Brugger (Ph.D., Editor, Maryland Historical Magazine, Maryland Historical Society). World Book Encyclopedia, 2007 Deluxe Edition.
“often called the Father of the Constitution. He played a leading role in the Constitutional Convention of 1787, where he helped design the checks and balances that operate among Congress, the president, and the Supreme Court. He also helped create the U.S. federal system, which divides power between the central government and the states.”
[7] Book: The Debates in the Federal Convention of 1787, which framed the Constitution of the United States of America, reported by James Madison, a delegate from the state of Virginia. Edited by Gaillard Hund and James Brown Scott. Oxford University Press, 1920. http://www.yale.edu/lawweb/avalon/debates/debcont.htm
June 6, 1787:
“James Madison… differed from the member from Connecticut [Mr. Sherman] in thinking the objects mentioned to be all the principal ones that required a National Govt. Those were certainly important and necessary objects; but he combined with them the necessity of providing more effectually for the security of private rights, and the steady dispensation of Justice. Interferences with these were evils which had more perhaps than any thing else, produced this convention.”
[8] Book: The Debates in the Federal Convention of 1787, which framed the Constitution of the United States of America, reported by James Madison, a delegate from the state of Virginia. Edited by Gaillard Hund and James Brown Scott. Oxford University Press, 1920. http://www.yale.edu/lawweb/avalon/debates/debcont.htm
“All civilized Societies would be divided into different Sects, Factions, & interests, as they happened to consist of rich & poor, debtors & creditors, the landed, the manufacturing, the commercial interests, the inhabitants of this district or that district, the followers of this political leader or that political leader, the disciples of this religious Sect or that religious Sect. In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. What motives are to restrain them? A prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals. Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie, is known to be inadequate in individuals: In large numbers, little is to be expected from it. Besides, Religion itself may become a motive to persecution & oppression. – These observations are verified by the Histories of every Country antient & modern. In Greece & Rome the rich & poor, the creditors & debtors, as well as the patricians & plebians alternately oppressed each other with equal unmercifulness. What a source of oppression was the relation between the parent cities of Rome, Athens & Carthage, & their respective provinces: the former possessing the power, & the latter being sufficiently distinguished to be separate objects of it? Why was America so justly apprehensive of Parliamentary injustice? Because G. Britain had a separate interest real or supposed, & if her authority had been admitted, could have pursued that interest at our expence. We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. What has been the source of those unjust laws complained of among ourselves? Has it not been the real or supposed interest of the major number? Debtors have defrauded their creditors. The landed interest has borne hard on the mercantile interest. The Holders of one species of property have thrown a disproportion of taxes on the holders of another species. The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a Republican Govt. the Majority if united have always an opportunity. The only remedy is to enlarge the sphere, & thereby divide the community into so great a number of interests & parties, that in the 1st. place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the 2d. place, that in case they shd. have such an interest, they may not be apt to unite in the pursuit of it. It was incumbent on us then to try this remedy, and with that view to frame a republican system on such a scale & in such a form as will controul all the evils wch. have been experienced.”
[9] Book: The Debates in the Federal Convention of 1787, which framed the Constitution of the United States of America, reported by James Madison, a delegate from the state of Virginia. Edited by Gaillard Hund and James Brown Scott. Oxford University Press, 1920. http://www.yale.edu/lawweb/avalon/debates/debcont.htm
{The objective of implementing checks and balances to curtail government power pervades these proceedings. For two examples of many:}
On May 31, 1787, Edmund Randolph of Virginia
“observed that the general object was to provide a cure for the evils under which the U. S. laboured; that in tracing these evils to their origin every man had found it in the turbulence and follies of democracy: that some check therefore was to be sought for agst. this tendency of our Governments: and that a good Senate seemed most likely to answer the purpose.”
On September 12, 1787, James Madison asserted:
“It was an important principle in this & in the State Constitutions to check legislative injustice and encroachments. The Experience of the States had demonstrated that their checks are insufficient.”
[10] The Constitution of the United States. Signed September 17, 1787. http://www.archives.gov/national-archives-experience/charters/constitution.html
Article V:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
{This effectively provides four different methods by which the Constitution can be amended, but for the sake of simplicity, I used the phrase “approval of… the states” to denote ratification by either their legislatures or through conventions.}
[11] Book: The Debates in the Federal Convention of 1787, which framed the Constitution of the United States of America, reported by James Madison, a delegate from the state of Virginia. Edited by Gaillard Hund and James Brown Scott. Oxford University Press, 1920. http://www.yale.edu/lawweb/avalon/debates/debcont.htm
May 25, 1787 (First day of the Constitutional Convention):
“Robert Morris… informed the members assembled that by the instruction & in behalf, of the deputation of Pena. he proposed George Washington Esqr. late Commander in chief for president of the Convention. Mr. JNo. RUTLIDGE seconded the motion; expressing his confidence that the choice would be unanimous, and observing that the presence of Genl. Washington forbade any observations on the occasion which might otherwise be proper. General WASHINGTON was accordingly unanimously elected by ballot, and conducted to the Chair by Mr. R. Morris and Mr. Rutlidge; from which in a very emphatic manner he thanked the Convention for the honor they had conferred on him, reminded them of the novelty of the scene of business in which he was to act, lamented his want of better qualifications, and claimed the indulgence of the House towards the involuntary errors which his inexperience might occasion.”
[12] Article: “Washington, George.” Contributor: Philander D. Chase (Ph.D., Editor, The Papers of George Washington). World Book Encyclopedia, 2007 Deluxe Edition.
[13] Farewell Address of George Washington, September 19, 1796. http://www.pbs.org/georgewashington/multimedia/heston/farewell_address.html
[14] The Constitution of the United States. Signed September 17, 1787. http://www.archives.gov/national-archives-experience/charters/constitution.html
Article VII:
The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.
[15] The Federalist Papers. By Alexander Hamilton, John Jay and James Madison. October 27, 1787- May 28, 1788. http://www.gutenberg.org/dirs/etext98/feder10a.txt
Federalist Paper 39, By James Madison. January 16, 1788:
“Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.”
[16] The Constitution was signed by the framers and sent to the states for ratification on September 17, 1787. The states ratified the Constitution as such:
Delaware, December 7, 1787
Pennsylvania, December 12, 1787
New Jersey, December 18, 1787
Georgia, January 2, 1788
Connecticut, January 9, 1788
Massachusetts, February 6, 1788
Maryland, April 28, 1788
South Carolina, May 23, 1788
New Hampshire, June 21, 1788
The ratification of the nine states above made the Constitution effective and binding upon them only. The rest of the states ratified it on the following dates:
Virginia, June 25, 1788
New York, July 26, 1788
North Carolina, November 21, 1789
Rhode Island, May 29, 1790
Vermont, January 10, 1791
[17] Book: The Federalist. Edited with an introduction and notes by Jacob E. Cooke. Wesleyan University Press, 1961. Page xi:
“The Federalist, addressed to the People of the State of New York, was occasioned by the objections of many New Yorkers to the Constitution which had been proposed… [T]he pages of New York newspapers were filled with articles denouncing the new frame of government.”
[18] Book: The Antifederalist Papers. Edited with an introduction by Morton Borden. Michigan State University Press, 1965. Antifederalist Paper 32, By Brutus. Published December 27, 1787 in The New-York Journal. [Regarding the proposed constitution, Article I, Section 8, Clause 1: “common defense and general welfare,” and Clause 18: “make all Laws which shall be necessary and proper.”]
“It is therefore evident, that the legislature under this constitution may pass any law which they think proper. … Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy. It opens the door to a swarm of revenue and excise officers to prey upon the honest and industrious part of the community, [and] eat up their substance…”
Antifederalist Paper 33, By Brutus. Published December 27, 1787 in The New-York Journal. [Regarding the proposed constitution, Article I, Section 8, Clause 1: “Power To lay and collect Taxes” to “provide for the common Defence and general Welfare.”]
“This power, exercised without limitation, will introduce itself into every corner of the city, and country… To provide for the general welfare is an abstract proposition, which mankind differ in the explanation of, as much as they do on any political or moral proposition that can be proposed; the most opposite measures may be pursued by different parties, and both may profess, that they have in view the general welfare… The government would always say, their measures were designed and calculated to promote the public good; and there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.”
[19] The Federalist Papers. By Alexander Hamilton, John Jay and James Madison. October 27, 1787- May 28, 1788. http://www.gutenberg.org/dirs/etext98/feder10a.txt
“Among the most formidable of the obstacles which the new Constitution will have to encounter may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminution of the power, emolument, and consequence of the offices they hold under the State establishments… But the fact is, that we already hear it whispered in the private circles of those who oppose the new Constitution, that the thirteen States are of too great extent for any general system, and that we must of necessity resort to separate confederacies of distinct portions of the whole.1… 1 The same idea, tracing the arguments to their consequences, is held out in several of the late publications against the new Constitution.”
Federalist Paper 41, By James Madison. January 19, 1788:
“It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.”
Federalist Paper 85, By Alexander Hamilton. May 28, 1788:
“The charge of a conspiracy against the liberties of the people, which has been indiscriminately brought against the advocates of the plan, has something in it too wanton and too malignant, not to excite the indignation of every man who feels in his own bosom a refutation of the calumny.”
[20] The Federalist Papers. By Alexander Hamilton, John Jay and James Madison. October 27, 1787- May 28, 1788. http://www.gutenberg.org/dirs/etext98/feder10a.txt
“Yes, my countrymen, I own to you that, after having given it an attentive consideration, I am clearly of opinion it is your interest to adopt it. I am convinced that this is the safest course for your liberty, your dignity, and your happiness.”
[21] Articles: “Hamilton, Alexander,” “Madison, James,” “Jay, John.” Encyclopædia Britannica Ultimate Reference Suite 2004.
[22] Book: The Federalist. Edited with an introduction and notes by Jacob E. Cooke. Wesleyan University Press, 1961. Page xi:
“The Federalist, addressed to the People of the State of New York, was occasioned by the objections of many New Yorkers to the Constitution which had been proposed… [T]he pages of New York newspapers were filled with articles denouncing the new frame of government. … The decision to publish [the] series of essays… was made by Alexander Hamilton.”
Pages xiv-xv:
“The first edition, printed by J. and A. McLean and corrected by Hamilton, is the source from which most editions of The Federalist have been taken. … McLean, having observed “the avidity” with which the “Publius” essays had been sought after by politicians and persons of every description,” announced plans for the publication of “The FEDERALIST, A Collection of Essays, written in favour of the New Constitution, By a Citizen of New-York, Corrected by the Author, with Additions and alterations.” [The first 36 essays were collectively published in a book dated March 22, 1788. On May 28 of the same year, the rest of the essays that appeared in newspapers were published in book form along with eight more written by Hamilton. These last eight essays were subsequently published in newspapers.]
Page xvi:
“The McLean and Hopkins editions thus constitute Hamilton’s revision of the text of The Federalist. He made some minor changes in essays written by John Jay and James Madison – changes which in the McLean edition they presumably authorized by allowing him to revise the work for publication in book form.”
Page xvii:
“All changes which Hamilton and Madison made or approved in the texts of the essays they wrote have been indicated in the notes.” {I found no such changes in any of the quotations cited below.}
Page xix:
“Like most other eighteenth century newspaper contributors, the authors of The Federalist chose to wrote anonymously.”
[23] The Constitution of the United States. Signed September 17, 1787. http://www.archives.gov/national-archives-experience/charters/constitution.html
Article I, Section 8:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
[24] Book: The Antifederalist Papers. Edited with an introduction by Morton Borden. Michigan State University Press, 1965. Antifederalist Paper 32, By Brutus. Published December 27, 1787 in The New-York Journal. [Regarding the proposed constitution, Article I, Section 8, Clause 1: “common defense and general welfare,” and Clause 18: “make all Laws which shall be necessary and proper.”]
“It is therefore evident, that the legislature under this constitution may pass any law which they think proper.”
{See also the next footnote.}
[25] The Federalist Papers. By Alexander Hamilton, John Jay and James Madison. October 27, 1787- May 28, 1788. http://www.gutenberg.org/dirs/etext98/feder10a.txt
