social spending essentials >
"Social Spending Essentials, Constitutional History.” By James D. Agresti.
Just Facts,
December 5, 2007.
http://justfacts.com/socialspending.essentials.asp
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
essential facts about the Constitutional history of social spending. For a
shorter list of basic facts,
click here. For comprehensive and scholarly details,
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]
* James Madison was the
architect of the Bill of Rights and is known as the 'Father of the
Constitution' for his central role in its formation.[3]
[4] During the convention at which the Constitution was
established, Madison gave a speech in which he 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.” 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.[5]
* Towards this end, the
framers of the Constitution developed a system of checks and balances on the
powers of the government that they formed.[6]
Guarding this system while giving it flexibility is Article V, which allows
the Constitution to be changed through supermajority votes. Two-thirds of
Congress or the states must make such a proposal, and three-quarters of the
states must approve it.[7]
* In his farewell address
to the nation, George Washington, the president of the Constitutional
Convention and the first U.S. President,[8]
[9]
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.”
[10] |
* 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.[11]
[12]
During this ratification process, which lasted for three years,[13]
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.[14]
[15]
[16]
* In an effort to build
support for the proposed Constitution,[17]
three prominent statesmen wrote a series of essays known as the
Federalist Papers, which explained the Constitution and addressed
objections to it. 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).[18]
[19]
Although the Federalist Papers were written by three individuals, all were
signed with a single pen name, “Publius.”
[20]
* Several of the
objections voiced against the Constitution pertained to Article I, Section
8, which states that Congress will have the power to “provide for the common
Defense and general Welfare of the United States…” In the same sentence
following these words are 27 specific powers granted to the federal
government such as coining money, enacting immigration laws, establishing
Post Offices, issuing patents, and raising armies. The sentence concludes by
stating that Congress will have authority to make all laws needed to execute
the “foregoing Powers, and all other Powers vested by this Constitution in
the Government of the United States.”
[21]
* One of the objections
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.[22]
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 words that followed it (such as coining money, establishing Post
Offices, 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.”
[23] |
* In Federalist Paper 33,
Alexander Hamilton addressed the objection that the last part 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.[24]
In response, Hamilton wrote that these words were “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.”
[25]
* Between December 1787
and January 1791, the Constitution was ratified by all of the states.[26]
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.”
[27]
* This stance caused 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.”)
[28]
[29]
[30]
[31]
[32]
[33]
[34]
* 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.[35]
[36]
* 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.[37]
[38]
* 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.”
[39]
[40] |
* In 1824, John Quincy
Adams was elected President of the United States. While in office, he
proposed and signed various laws that provided federal funds for building
roads, improving harbors, and funding the arts and sciences.[41]
[42]
[43]
* In 1848, the Democratic
Party adopted a platform stating that the “federal government is one of
limited powers” and the Constitution does not give the federal government
the power to undertake “a general system of internal improvements.”
[44]
* 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.[45]
* In 1856, Abraham Lincoln
joined a new party that had been formed two years earlier on the basis of
opposition to slavery.[46]
[47]
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.[48]
[49] The
first Republican platform 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.”
[50]
[51] |
* 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…”
[52] |
* 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.[53]
* 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.”
[54]
* In 1932, Franklin Delano
Roosevelt, the Democratic governor of New York, was elected President of the
United States.[55]
The Great Depression had begun in 1929,[56]
and upon accepting the nomination of the Democratic Party, Roosevelt
promised a “new deal” for Americans. In this speech, he 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.”
[57]
[58]
|
* 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.[59]
[60]
[61]
This included, among other measures, the formation of 21 new federal
agencies,[62]
money for people with financial hardships,[63]
money for federal housing projects,[64]
the formation of the Social Security program,[65]
government projects that employed millions of people,[66]
and low interest loans to help individuals in paying their mortgages.[67]
[68]
* 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.[69]
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.[70]
* 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, and established provisions for
industry-wide wage requirements.[71]
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…
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.”
[72]
|
* 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.[73]
[74]
[75]
[76]
* Four days after this
decision was issued, Roosevelt held a press conference in which he asserted
state this decision was the most important of his lifetime and that the
Supreme Court had “relegated” the U.S. to a “horse and buggy” interpretation
of the Constitution.[77]
* Four months before this
press conference, Roosevelt’s Secretary of the Interior, Harold L. Ickes,
recorded in his diary that Roosevelt was considering a plan that would allow
him to appoint more justices to Supreme Court so as to give his programs “a
favorable majority.”
[78]
* The following year,
Roosevelt won reelection by a broad margin and the Democratic Party expanded
its majority in Congress.[79]
[80]
After his term began, Roosevelt proposed a bill that would have allowed him
to appoint up to six more justices to the Supreme Court.[81]
[82]
[83] At
the press conference in which he announced this proposal, he 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.”
[84] |
* 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.”
[85] |
* In the four months after Roosevelt
proposed his bill to alter the composition of the Supreme Court,[86]
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 deciding votes.[87]
[88]
[89]
[90]
[91]
[92]
[93]
* 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.[94]
[95] 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 two swing justices,
Charles Evan Hughes and Owen J. Roberts joined in this decision.[96]
[97]
* 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.”
[98]
|
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.”
[99] |
* 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.[100]
[101]
|
“We obtained 98 percent of all the
objectives intended by the Court plan.”
[103] |
[1]
The Constitution of the United States. Signed September 17, 1787.
http://www.archives.gov/national-archives-experience/charters/constitution.html
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:
[3]
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.”
[4]
Article: “Madison, James.” Contributor: Robert J. Brugger (Ph.D.,
Editor, Maryland Historical Magazine, Maryland Historical Society). World Book Encyclopedia, 2007 Deluxe Edition.
[5]
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:
[6]
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
[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
May 25, 1787 (First
day of the Constitutional Convention):
[13]
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
[15]
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.”
[16]
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:
“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:
[19]
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.”
[20]
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.”
[22]
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.”
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.”]
[23]
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 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. No stronger proof could be
given of the distress under which these writers labor for objections,
than their stooping to such a misconstruction.
Had no other
enumeration or definition of the powers of the Congress been found in
the Constitution, than the general expressions just cited, the authors
of the objection might have had some color for it; though it would have
been difficult to find a reason for so awkward a form of describing an
authority to legislate in all possible cases. A power to destroy the
freedom of the press, the trial by jury, or even to regulate the course
of descents, or the forms of conveyances, must be very singularly
expressed by the terms “to raise money for the general welfare.”
But what color can the
objection have, when a specification of the objects alluded to by these
general terms immediately follows, and is not even separated by a longer
pause than a semicolon? If the different parts of the same instrument
ought to be so expounded, as to give meaning to every part which will
bear it, shall one part of the same sentence be excluded altogether from
a share in the meaning; and shall the more doubtful and indefinite terms
be retained in their full extent, and the clear and precise expressions
be denied any signification whatsoever? For what purpose could the
enumeration of particular powers be inserted, if these and all others
were meant to be included in the preceding general power? 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. But the idea of an
enumeration of particulars which neither explain nor qualify the general
meaning, and can have no other effect than to confound and mislead, is
an absurdity, which, as we are reduced to the dilemma of charging either
on the authors of the objection or on the authors of the Constitution,
we must take the liberty of supposing, had not its origin with the
latter.
The objection here is
the more extraordinary, as it appears that the language used by the
convention is a copy from the articles of Confederation. The objects of
the Union among the States, as described in article third, are “their
common defense, security of their liberties, and mutual and general
welfare.” The terms of article eighth are still more identical: “All
charges of war and all other expenses that shall be incurred for the
common defense or general welfare, and allowed by the United States in
Congress, shall be defrayed out of a common treasury,” etc. A similar
language again occurs in article ninth. Construe either of these
articles by the rules which would justify the construction put on the
new Constitution, and they vest in the existing Congress a power to
legislate in all cases whatsoever. But what would have been thought of
that assembly, if, attaching themselves to these general expressions,
and disregarding the specifications which ascertain and limit their
import, they had exercised an unlimited power of providing for the
common defense and general welfare? I appeal to the objectors
themselves, whether they would in that case have employed the same
reasoning in justification of Congress as they now make use of against
the convention. How difficult it is for error to escape its own
condemnation! PUBLIUS.
[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.”]
[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
Federalist Paper 33,
By Alexander Hamilton. January 3, 1788:
THE residue of the
argument against the provisions of the Constitution in respect to
taxation is ingrafted upon the following clause. The last clause of the
eighth section of the first article of the plan under consideration
authorizes the national legislature ‘to make all laws which shall be
NECESSARY and PROPER for carrying into execution THE POWERS by that
Constitution vested in the government of the United States, or in any
department or officer thereof’; and the second clause of the sixth
article declares, ‘that the Constitution and the laws of the United
States made IN PURSUANCE THEREOF, and the treaties made by their
authority shall be the SUPREME LAW of the land, any thing in the
constitution or laws of any State to the contrary notwithstanding.’
These two clauses have
been the source of much virulent invective and petulant declamation
against the proposed Constitution. They have been held up to the people
in all the exaggerated colors of misrepresentation as the pernicious
engines by which their local governments were to be destroyed and their
liberties exterminated; as the hideous monster whose devouring jaws
would spare neither sex nor age, nor high nor low, nor sacred nor
profane; and yet, strange as it may appear, after all this clamor, to
those who may not have happened to contemplate them in the same light,
it may be affirmed with perfect confidence that the constitutional
operation of the intended government would be precisely the same, if
these clauses were entirely obliterated, as if they were repeated in
every article. They are only declaratory of a truth which would have
resulted by necessary and unavoidable implication from the very act of
constituting a federal government, and vesting it with certain specified
powers. This is so clear a proposition, that moderation itself can
scarcely listen to the railings which have been so copiously vented
against this part of the plan, without emotions that disturb its
equanimity.
…
[26]
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
[27]
Letter: “Report on Manufactures.” By Alexander Hamilton. December 5,
1791.
http://press-pubs.uchicago.edu/founders/documents/a1_8_1s21.html
“The terms “general
Welfare” were doubtless intended to signify more than was expressed or
imported in those which Preceded; otherwise numerous exigencies incident
to the affairs of a Nation would have been left without a provision. The
phrase is as comprehensive as any that could have been used; because it
was not fit that the constitutional authority of the Union, to
appropriate its revenues shou’d have been restricted within narrower
limits than the “General Welfare” and because this necessarily embraces
a vast variety of particulars, which are susceptible neither of
specification nor of definition.”
[28]
"Letter from Thomas Jefferson to Albert Gallatin." June 16, 1817.
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php
?title=808&chapter=88365&layout=html&Itemid=27
“You will have learned
that an act for internal improvement, after passing both Houses, was
negatived by the President. The act was founded, avowedly, on the
principle that the phrase in the constitution which authorizes Congress
“to lay taxes, to pay the debts and provide for the general welfare,”
was an extension of the powers specifically enumerated to whatever would
promote the general welfare; and this, you know, was the federal
doctrine. Whereas, our tenet ever was, and, indeed, it is almost the
only landmark which now divides the federalists from the republicans,
that Congress had not unlimited powers to provide for the general
welfare, but were restrained to those specifically enumerated…”
[29]
Article: “Hamilton, Alexander.” Contributor: Richard Brookhiser (Senior
Editor, National Review; author of Alexander Hamilton, American). World Book Encyclopedia, 2007 Deluxe Edition.
[30]
Article: “Jefferson, Thomas.” Contributor: Noble E. Cunningham, Jr.
(Ph.D., Curators’ Professor Emeritus of History, University of Missouri,
Columbia). World Book Encyclopedia, 2007 Deluxe Edition.
[31]
Article: “Federalist Party.” Contributor: Donald R. Hickey (Ph.D.,
Professor of History, Wayne State College). World Book Encyclopedia,
2007 Deluxe Edition.
[32]
Article: “Federalist Party.” Encyclopædia Britannica Ultimate
Reference Suite 2004.
[33]
Article: “Jefferson, Thomas.” Contributor: Noble E. Cunningham, Jr.
(Ph.D., Curators’ Professor Emeritus of History, University of Missouri,
Columbia). World Book Encyclopedia, 2007 Deluxe Edition.
[34]
Web Page: “Party History.” Democratic National Committee.
Accessed November 15, 2007 at
http://www.democrats.org/a/party/history.html
The late Ron Brown —
former Chairman of the Democratic Party — put it best when he wrote,
“The common thread of Democratic history, from Thomas Jefferson to Bill
Clinton, has been an abiding faith in the judgment of hardworking
American families, and a commitment to helping the excluded, the
disenfranchised and the poor strengthen our nation by earning themselves
a piece of the American Dream. We remember that this great land was
sculpted by immigrants and slaves, their children and grandchildren.”
[37]
Book: Life of James Knox Polk and a History of His Administration.
By John S. Jenkins. Burnett & Bostwick, 1854. Pages 337-355: “Special
Message On Internal Improvements, December 15th, 1847. To the House of
Representatives.” Page 351:
[39]
Book: The Life of Thomas Jefferson, Third President of the United
States. By George Tucker. Volume 2. Carey, Lea & Blanchard, 1837.
Page 403:
[40]
"Letter from Thomas Jefferson to Albert Gallatin." June 16, 1817.
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php
?title=808&chapter=88365&layout=html&Itemid=27
“You will have learned
that an act for internal improvement, after passing both Houses, was
negatived by the President. The act was founded, avowedly, on the
principle that the phrase in the constitution which authorizes Congress
“to lay taxes, to pay the debts and provide for the general welfare,”
was an extension of the powers specifically enumerated to whatever would
promote the general welfare; and this, you know, was the federal
doctrine. Whereas, our tenet ever was, and, indeed, it is almost the
only landmark which now divides the federalists from the republicans,
that Congress had not unlimited powers to provide for the general
welfare, but were restrained to those specifically enumerated; and that,
as it was never meant they should provide for that welfare but by the
exercise of the enumerated powers, so it could not have been meant they
should raise money for purposes which the enumeration did not place
under their action; consequently, that the specification of powers is a
limitation of the purposes for which they may raise money. I think the
passage and rejection of this bill a fortunate incident. Every State
will certainly concede the power; and this will be a national
confirmation of the grounds of appeal to them, and 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. For
in the phrase, “to lay taxes, to pay the debts and provide for the
general welfare,” it is a mere question of syntax, whether the two last
infinitives are governed by the first or are distinct and co-ordinate
powers; a question unequivocally decided by the exact definition of
powers immediately following.”
[41]
Article: “John Quincy Adams.” Microsoft Encarta Online Encyclopedia,
2007
http://encarta.msn.com/encyclopedia_761577199/John_Quincy_Adams.html
“He advocated using
federal funds for new canals, highways, harbor improvements, a stronger
navy, military schools, and a national university. States’ rights
advocates in Congress opposed the federal government’s assuming these
responsibilities and refused to support the president. His request for
funds to promote the arts and sciences, specifically to support
scientific research and to build astronomical observatories, was
especially criticized.”
[42]
Book: Life of James Knox Polk and a History of His Administration.
By John S. Jenkins. Burnett & Bostwick, 1854. Pages 337-355: “Special
Message On Internal Improvements, December 15th, 1847. To the House of
Representatives.” Pages 347-8:
During the four
succeeding years embraced by the administration of President Adams, the
power not only to appropriate money, but to apply it, under the
direction and authority of the General Government, as well to the
construction of roads as to the improvement of harbors and rivers, was
fully asserted and exercised.
Among other acts
assuming the power, was one passed on the twentieth of May, 1826,
entitled “An act for improving certain harbors and the navigation of
certain rivers and creeks, and for authorizing surveys to be made of
certain bays, sounds, and rivers therein mentioned.” By that act large
appropriations were made, which were to be “applied under the direction
of the President of the United States” to numerous improvements in ten
of the States. This act, passed thirty-seven years after the
organization of the present Government, contained the first
appropriation ever made for the improvement of a navigable river, unless
it be small appropriations for examinations and surveys in 1820. During
the residue of that Administration many other appropriations of a
similar character were made, embracing roads, rivers, harbors, and
canals, and objects claiming the aid of Congress multiplied without
number.
[43]
Book: Life of Abraham Lincoln, Presenting His Early History, Political
Career, and Speeches in and out of Congress; Also, a General View of His
Policy as President of the United States… Edited by Joseph H. Barrett.
Moore, Wilstach & Baldwin, 1865. Pages 90-100: [Speech delivered before
the House of Representatives by Abe Lincoln on June 20, 1848.] Pages
92-93:
[44]
“Democratic Party Platform of 1852.” Democratic National Committee,
June 1, 1852.
http://www.presidency.ucsb.edu/ws/print.php?pid=29575
1. That the federal
government is one of limited powers, derived solely from the
constitution, and the grants of power made therein ought to be strictly
construed by all the departments and agents of the government; and that
it is inexpedient and dangerous to exercise doubtful constitutional
powers.
[45]
Book: Life of Abraham Lincoln, Presenting His Early History,
Political Career, and Speeches in and out of Congress; Also, a General
View of His Policy as President of the United States… Edited by
Joseph H. Barrett. Moore, Wilstach & Baldwin, 1865. Pages 90-100:
[Speech delivered before the House of Representatives by Abe Lincoln on
June 20, 1848.] Page 95:
“Mr. Chairman, on the
third position of the message (the Constitutional question) I have not
much to say. Being the man I am, and speaking when I do, I feel that in
any attempt at an original, Constitutional argument, I should not be,
and ought not to be, listened to patiently. The ablest and the best of
men have gone over the whole ground long ago. I shall attempt but little
more than a brief notice of what some of them have said.”
Pages 96-97:
“This Constitutional
question will probably never be better settled than it is, until it
shall pass under judicial consideration; but I do think that no man who
is clear on this question of expediency need feel his conscience much
pricked upon this.”
Page 98:
“I have already said
that no one who is satisfied of the expediency of making improvements
need be much uneasy in his conscience about its constitutionality. 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. Better
rather habituate ourselves to think of it as unalterable. It can
scarcely be made better than it is. New provisions would introduce new
difficulties, and thus create and increase appetite for further change.
No, sir; let it stand as it is. New hands have never touched it. The men
who made it have done their work, and have passed away. Who shall
improve on what they did?”
[47]
Article: “Lincoln, Abraham.” Contributor: Gabor S. Boritt (Ph.D.,
Professor of Civil War Studies, Gettysburg College). World Book
Encyclopedia, 2007 Deluxe Edition.
[49]
Book: A Political Text-Book for 1860: Comprising a Brief View of
Presidential Nominations and Elections… Compiled by Horace Greely &
John F. Cleveland. The Tribune Association, 1860. Page 206:
Mr. Lincoln having
been invited by the Republicans of Boston, to attend a Festival in honor
of the anniversary of Jefferson’s birthday, on the 13th of
April, 1859, replied as follows [on April 6, 1859]:
GENTLEMEN: Your kind
note, inviting me to attend a festival in Boston, on the 18th
inst., in honor of the birthday of Thomas Jefferson, was duly received.
My engagements are such that I cannot attend. Bearing in mind that about
seventy years ago two great political parties were first formed in this
country; that Thomas Jefferson was the head of one of them and Boston
the headquarters of the other, it is both curious and interesting that
those supposed to descend politically from the party opposed to
Jefferson, should now be celebrating his birthday in their own original
seat of empire, while those claiming political descent from him have
nearly ceased to breathe his name everywhere.
Remembering, too, that
the Jefferson party was formed upon its supposed superior devotion to
the personal rights of men, holding the rights of property
to be secondary only, and greatly inferior; and then assuming that the
so-called Democracy of to-day are the Jefferson, and their opponents the
anti-Jefferson parties, it will be equally interesting to note how
completely the two have changed ground as to the principle upon which
they were originally supposed to be divided.
The Democracy of
to-day hold the liberty of one man to be absolutely nothing, when
in conflict with another man’s right of property. Republicans, on
the contrary, are both for the man and the dollar, but in
case of conflict the man before the dollar.
I remember being once
much amused at seeing two partially intoxicated men engaged in a fight
with their great-coats on, which fight, after a long and rather harmless
contest, ended in each having fought himself out of his own coat and
into that of the other. If the two leading parties of this day are
really identical with the two in the days of Jefferson and Adams, they
have performed the same feat as the two drunken men.
But soberly, it is now
no child’s play to save the principles of Jefferson from total overthrow
in this nation.
One would state with
great confidence that he could convince any sane child that the simpler
propositions of Euclid are true; but nevertheless, he would fail, with
one who should deny the definitions and axioms. The principles of
Jefferson are the definitions and axioms of free society. And yet they
are denied and evaded, with no small show of success. One dashingly
calls them “glittering generalities.” Another bluntly styles them
“self-evident lies.” And others insidiously argue that they apply only
to “superior races.”
These expressions,
differing in form, are identical in object and effect—the supplanting
the principles of free government, and restoring those of
classification, caste, and legitimacy. They would delight a convocation
of crowned heads plotting against the people. They are the vanguard, the
sappers and miners, of returning despotism. We must repulse them, or
they will subjugate us.
This is a world of
compensations; and he who would be no slave must consent to have no slave. Those who deny freedom to others deserve it not for
themselves; and, under a just God, cannot long retain it.
All honor to
Jefferson—to the man who, in the concrete pressure of a struggle for
national independence by a single people, had the coolness, forecast,
and capacity, to introduce into a merely revolutionary document an
abstract truth, applicable to all men and all times, and so to embalm it
there, that to-day and in all coming days it shall be a rebuke and a
stumbling-block to the harbingers of reappearing tyranny and oppression.
Your obedient servant,
A. LINCOLN.
[51]
Book: A Political Text-Book for 1860: Comprising a Brief View of
Presidential Nominations and Elections… Compiled by Horace Greely &
John F. Cleveland. The Tribune Association, 1860. Page 22:
REPUBLICAN NATIONAL
CONVENTION—1856. This Convention met at Philadelphia on the 17th
of June… The Convention adopted the following PLATFORM:
This Convention of
Delegates, assembled in pursuance of a call addressed to the people of
the United States, without regard to past political differences or
divisions, who are opposed to the repeal of the Missouri Compromise, to
the policy of the present Administration, to the extension of Slavery
into Free Territory; in favor of admitting Kansas as a Free State, of
restoring the action of the Federal Government to the principles of
Washington and Jefferson, and who purpose to unite in presenting
candidates for the offices of President and Vice-President, do resolve
as follows:
Resolved,
That the maintenance of the principles promulgated in the Declaration of
Independence and embodied in the Federal Constitution is essential to
the preservation of our Republican Institutions, and that the Federal
Constitution, the rights of the States, and the Union of the States,
shall be preserved.
Resolved,
That with our republican fathers we hold it to be a self-evident truth,
that all men are endowed with the inalienable rights to life, liberty,
and the pursuit of happiness, and that the primary object and ulterior
designs of our Federal Government were, to secure these rights to all
persons within its exclusive jurisdiction; that, as our republican
fathers, when they had abolished Slavery in all our national territory,
ordained that no person should be deprived of life, liberty or property
without due process of law, it becomes our duty to maintain this
provision of the Constitution against all attempts to violate it for the
purpose of establishing Slavery in any territory of the United States,
by positive legislation, prohibiting its existence or extension therein.
That we deny the authority of Congress, of a territorial legislature, of
any individual or association of individuals, to give legal existence to
Slavery in any territory of the United States, while the present
Constitution shall be maintained.
Resolved,
That the Constitution confers upon Congress sovereign power over the
territories of the United States for their government, and that in the
exercise of this power it is both the right and the duty of Congress to
prohibit in the territories those twin relics of barbarism —Polygamy and
Slavery.
Resolved, That while
the Constitution of the United States was ordained and established by
the people in order to form a more perfect Union, establish justice,
insure domestic tranquility, provide for the common defense, and secure
the blessings of liberty, and contains ample provisions for the
protection of the life, liberty and property of every citizen, the
dearest constitutional rights of the people of Kansas have been
fraudulently and violently taken from them —their territory has been
invaded by an armed force—spurious and pretended legislative, judicial
and executive officers have been set over them, by whose usurped
authority, sustained by the military power of the Government, tyrannical
and unconstitutional laws have been enacted and enforced— the rights of
the people to keep and bear arms have been infringed—test oaths of an
extraordinary and entangling nature have been imposed, as a condition of
exercising the right of suffrage and holding office—the right of an
accused person to a speedy and public trial by an impartial jury has
been denied—the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures
has been violated—they have been deprived of life, liberty and property
without due process of law—that the freedom of speech and of the press
has been abridged—the right to choose their representatives has been
made of no effect—murders, robberies and arsons have been instigated and
encouraged, and the offenders have been allowed to go unpunished—that
all these things have been done with the knowledge, sanction and
procurement of the present Administration, and that for this high crime
against the Constitution, the Union and Humanity, we arraign the
Administration, the President, his advisers, agents, supporters,
apologists and accessories, either before or after the facts, before the
country and before the world, and that it is our fixed purpose to bring
the actual perpetrators of these atrocious outrages, and their
accomplices, to a sure and condign punishment, hereafter.
Resolved,
That Kansas should be immediately admitted as a State of the Union, with
her present free Constitution, as at once the most effectual way of
securing to her citizens the enjoyment of the rights and privileges to
which they are entitled; and of ending the civil strife now raging in
her territory.
Resolved,
That a railroad to the Pacific Ocean, by the most central and
practicable route, is imperatively demanded by the interests of the
whole country, and that the Federal Government ought to render immediate
and efficient aid in its construction; and, as an auxiliary thereto, the
immediate construction of an emigrant route on the line of the railroad.
Resolved,
That the highwayman’s plea, that “might makes right,” embodied in the
Ostend Circular, was in every respect unworthy of American diplomacy,
and would bring shame and dishonor upon any government or people that
gave it their sanction.
Resolved,
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.
[52]
Book: The Writings and Speeches of Grover Cleveland. Edited by
George F. Parker. Cassell Publishing, 1892. Pages 449-451:
February 16, 1887.
To THE HOUSE OF
REPRESENTATIVES :
I return without my
approval House bill number ten thousand two hundred and three, entitled
“An Act to enable the Commissioner of Agriculture to make a special
distribution of seeds in drought-stricken counties of Texas, and making
an appropriation therefor.”
It is represented that
a long-continued and extensive drought has existed in certain portions
of the State of Texas, resulting in a failure of crops and consequent
distress and destitution.
Though there has been
some difference in statements concerning the extent of the people’s
needs in the localities thus affected, there seems to be no doubt that
there has existed a condition calling for relief; and I am willing to
believe that, notwithstanding the aid already furnished, a donation of
seed-grain to the farmers located in this region, to enable them to put
in new crops, would serve to avert a continuance or return of an
unfortunate blight.
And yet 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, and I do not believe that
the power and duty of the general government ought to be extended to the
relief of individual suffering which is in no manner properly related to
the public service or benefit. A prevalent tendency to disregard the
limited mission of this power and duty should, I think, be steadfastly
resisted, to the end that the lesson should be constantly enforced that,
though the people support the government, the government should not
support the people.
The friendliness and
charity of our countrymen can always be relied upon to relieve their
fellow-citizens in misfortune. This has been repeatedly and quite lately
demonstrated. Federal aid in such cases encourages the expectation of
paternal care on the part of the government and weakens the sturdiness
of our national character, while it prevents the indulgence among our
people of that kindly sentiment and conduct which strengthen the bonds
of a common brotherhood.
It is within my
personal knowledge that individual aid has, to some extent, already been
extended to the sufferers mentioned in this bill. The failure of the
proposed appropriation of ten thousand dollars additional, to meet their
remaining wants, will not necessarily result in continued distress if
the emergency is fully made known to the people of the country.
It is here suggested
that the Commissioner of Agriculture is annually directed to expend a
large sum of money for the purchase, propagation, and distribution of
seeds and other things of this description, two-thirds of which are,
upon the request of senators, representatives, and delegates in
Congress, supplied to them for distribution among their constituents.
The appropriation of
the current year for this purpose is one hundred thousand dollars, and
it will probably be no less in the appropriation for the ensuing year. I
understand that a large quantity of
grain is furnished for such distribution, and it is supposed that this
free apportionment among their neighbors is a privilege which may be
waived by our senators and representatives.
If sufficient of them
should request the Commissioner of Agriculture to send their shares of
the grain thus allowed them, to the suffering farmers of Texas, they
might be enabled to sow their crops; the constituents, for whom in
theory this grain is intended, could well bear the temporary
deprivation, and the donors would experience the satisfaction attending
deeds of charity.
[54]
“Democratic Party Platform of 1900.” July 4th, 1900.
http://www.presidency.ucsb.edu/ws/print.php?pid=29587
We hold that the
Constitution follows the flag, and denounce the doctrine that an
Executive or Congress deriving their existence and their powers from the
Constitution can exercise lawful authority beyond it or in violation of
it.
…
We denounce the lavish
appropriations of recent Republican Congresses, which have kept taxes
high and which threaten the perpetuation of the oppressive war levies.
We oppose the accumulation of a surplus to be squandered in such
barefaced frauds upon the taxpayers as the shipping subsidy bill, which,
under the false pretense of prospering American shipbuilding, would put
unearned millions into the pockets of favorite contributors to the
Republican campaign fund. We favor the reduction and speedy repeal of
the war taxes, and a return to the time-honored Democratic policy of
strict economy in governmental expenditures.
[55]
Article: “Roosevelt, Franklin Delano.” Contributor: James T. Patterson
(Ph.D., Professor of History, Brown University). World Book
Encyclopedia, 2007 Deluxe Edition.
[56]
Article: “Great Depression.” Kris James Mitchener (Ph.D., Assistant
Professor of Economics, Santa Clara University). World Book
Encyclopedia, 2007 Deluxe Edition.
[57]
Nomination Address of Franklin Delano Roosevelt at the Democratic
National Convention, July 2, 1932.
http://newdeal.feri.org/speeches/1932b.htm
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. As an immediate program of action we must
abolish useless offices. We must eliminate unnecessary functions of
Government--functions, in fact, that are not definitely essential to the
continuance of Government. We must merge, we must consolidate
subdivisions of Government, and, like the private citizen, give up
luxuries which we can no longer afford.
…
And now one word about
unemployment, and incidentally about agriculture. I have favored the use
of certain types of public works as a further emergency means of
stimulating employment and the issuance of bonds to pay for such public
works, but I have pointed out that no economic end is served if we
merely build without building for a necessary purpose. Such works, of
course, should insofar as possible be self-sustaining if they are to be
financed by the issuing of bonds. So as to spread the points of all
kinds as widely as possible, we must take definite steps to shorten the
working day and the working week.
…
The practical way to
help the farmer is by an arrangement that will, in addition to
lightening some of the impoverishing burdens from his back, do something
toward the reduction of the surpluses of staple commodities that hang on
the market. It should be our aim to add to the world prices of staple
products the amount of a reasonable tariff protection, to give
agriculture the same protection that industry has today.
…
One more word about
the farmer, and I know that every delegate in this hall who lives in the
city knows why I lay emphasis on the farmer. It is because one-half of
our population, over 50,000,000 people, are dependent on agriculture;
and, my friends, if those 50,000,000 people have no money, no cash, to
buy what is produced in the city, the city suffers to an equal or
greater extent. {See the next footnote for another estimate of the
percentage of the population involved in agriculture at the time.}
…
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. It will soon fulfill that
responsibility.
…
[59]
Article: “Roosevelt, Franklin Delano.” Contributor: James T. Patterson
(Ph.D., Professor of History, Brown University). World Book
Encyclopedia, 2007 Deluxe Edition.
“On March 9, 1933,
Congress began a special session called by Roosevelt. The president at
once began to submit recovery and reform laws for congressional
approval. Congress passed nearly all the important bills that he
requested, most of them by large majorities.”
[63]
Article: “New Deal.” Contributor: David A. Shannon (Ph.D., Former
Professor of History, University of Virginia). “The Federal Emergency
Relief Administration provided the states with money for the needy.”
[65]
“The Social Security Act of 1935.” United
States Congress, August 14, 1935.
http://www.ssa.gov/history/35act.html
“An act to provide for
the general welfare by establishing a system of Federal old-age
benefits, and by enabling the several States to make more adequate
provision for aged persons, blind persons, dependent and crippled
children, maternal and child welfare, public health, and the
administration of their unemployment compensation laws; to establish a
Social Security Board; to raise revenue; and for other purposes.”
[71]
Ruling: “Carter v. Carter Coal Company.” U.S. Supreme Court, May 18,
1936. Case 298 U.S. 238.
Decided 6-3. Majority: Sutherland, Butler, McReynolds, Roberts, Van
Devanter. Concurring: Hughes. Dissenting: Cardozo, Brandeis, Stone.
http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/298/238.html
Section 3 (15 U.S.C.A.
804) provides: “There is hereby imposed upon the sale or other disposal
of all bituminous coal produced within the United States an excise tax
of 15 per centum on the sale price... [T]he Commissioner of Internal
Revenue shall fix a price therefor at the current market price for the
comparable kind, quality, and size of coals in the locality where the
same is produced: Provided further, That any such coal producer who has
filed with the National Bituminous Coal Commission his acceptance of the
code provided for in section 4 of this Act (sections 805, 806, 807 and
808 of this chapter), and who acts in compliance with the provisions of
such code, shall be entitled to a drawback in the form of a credit upon
the amount of such tax payable hereunder, equivalent to 90 per centum of
the amount of such tax…
…
The labor provisions
of the code, found in part 3 of the same section ( 15 U.S.C.A. 808),
require that in order to effectuate the purposes of the act the district
boards and code members shall accept specified conditions contained in
the code, among which are the following:
Employees to be given
the right to organize and bargain collectively, through representatives
of their own choosing, free from interference, restraint, or coercion of
employers or their agents in respect of their concerted activities.
Such employees to have
the right of peaceable assemblage for the discussion of the principles
of collective bargaining and to select their own check-weighman to
inspect the weighing or measuring of coal.
A labor board is
created, consisting of three members, to be appointed by the President
and assigned to the Department of Labor. Upon this board is conferred
authority to adjudicate disputes arising under the provisions just
stated, and to determine whether or not an organization of employees had
been promoted, or is controlled or dominated by an employer in its
organization, management, policy, or election of representatives. The
board ‘may order a code member to meet the representatives of its
employees for the purpose of collective bargaining.’
Subdivision (g) of
part 3 (15 U.S.C.A. 808(g) provides:
‘Whenever the maximum
daily and weekly hours of labor are agreed upon in any contract or
contracts negotiated between the producers of more than two-thirds the
annual national tonnage production for the preceding calendar year and
the representatives of more than one-half the mine workers employed,
such maximum hours of labor shall be accepted by all the code members.
The wage agreement or agreements negotiated by collective bargaining in
any district or group of two or more districts, between representatives
of producers of more than two-thirds of the annual tonnage production of
such district or each of such districts in a contracting group during
the preceding calendar year, and representatives of the majority of the
mine workers therein, shall be filed with the Labor Board and shall be
accepted as the minimum wages for the various classifications of labor
by the code members operating in such district or group of districts.’
[72]
Ruling: “Carter v. Carter Coal Company.” U.S. Supreme Court, May
18, 1936. Case 298 U.S. 238. Decided 6-3. Majority: Sutherland, Butler,
McReynolds, Roberts, Van Devanter. Concurring: Hughes. Dissenting:
Cardozo, Brandeis, Stone.
http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/298/238.html
The convention,
however, declined to confer upon Congress power in such general terms;
instead of which it carefully limited the powers which it thought wise
to intrust 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, United States v. Butler, supra,
297 U.S. 1
, at page 64, 56 S.Ct. 312, 102 A.L.R. 914; and no such authority
exists, save as the general welfare may be promoted by the exercise of
the powers which are granted. Compare Jacobson v. Massachusetts,
197 U.S. 11, 22
, 25 S.Ct. 358, 3 Ann.Cas. 765.
…
Replying directly to
the suggestion advanced by counsel in Kansas v. Colorado {1907},
206 U.S. 46, 89
, 90 S., 27 S.Ct. 655, 664, to the effect that necessary
powers national in their scope must be found vested in Congress, though
not expressly granted or essentially implied, this court said:
‘But the proposition
that there are legislative powers affecting the nation as a whole which
belong to, although not expressed in the grant of powers, is in direct
conflict with the doctrine that this is a government of enumerated
powers. That this is such a government clearly appears from the
Constitution, independently of the Amendments, for otherwise there would
be an instrument granting certain specified things made operative to
grant other and distinct things. This natural construction of the
original body of the Constitution is made absolutely certain by the 10th
Amendment. This Amendment, which was seemingly adopted with prescience
of just such contention as the present, disclosed the widespread fear
that the national government might, under the pressure of a supposed
general welfare, attempt to exercise powers which had not been granted.
With equal determination the framers intended that no such assumption
should ever find justification in the organic act, and that if, in the
future, further powers seemed necessary, they should [298 U.S. 238, 294]
be granted by the people in the manner they had provided for amending
that act.’
The determination of
the Framers Convention and the ratifying conventions to preserve
complete and unimpaired state self-government in all matters not
committed to the general government is one of the plainest facts which
emerges from the history of their deliberations. And adherence to that
determination is incumbent equally upon the federal government and the
states. 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.
[73]
“The National Industrial Recovery Act of
1933.” United States Congress, June 16, 1933.
http://www.historicaldocuments.com/NationalIndustrialRecoveryAct.htm
Section 3 (a):
“Upon the application
to the President by one or more trade or industrial associations or
groups the President may approve a code or codes of fair competition for
the trade or industry or sub-division thereof…”
Section 3 (d):
“Upon his own motion,
or if complaint is made to the President that abuses inimical to the
public interest and contrary to the policy herein declared are prevalent
in any trade or industry or subdivision thereof, and if no code of fair
competition therefor has theretofore been approved by the President, the
President, after such public notice and hearing as he shall specify, may
prescribe and approve a code of fair competition for such trade or
industry or subdivision thereof, which shall have the same effect as a
code of fair competition approved by the President under subsection (a)
of this section.”
Section 4 (b):
“Whenever the
President shall find that destructive wage or price cutting or other
activities contrary to the policy of this title are being practiced in
any trade or industry or any subdivision thereof, and, after such public
notice and hearing as he shall specify, shall find it essential to
license business enterprises in order to make effective a code of fair
competition or an agreement under this title or otherwise to effectuate
the policy of this title, and shall publicly so announce, no person
shall, after a date fixed in such announcement, engage in or carryon any
business, in or affecting interstate or foreign commerce, specified in
such announcement, unless he shall have first obtained a license issued
pursuant to such relations as the President shall prescribe. The
President may suspend or revoke any such license, after due notice and
opportunity for hearing, for violations of the terms or conditions
thereof. Any order of the President suspending or revoking any such
license shall be final if in accordance with law.”
Section 6 (a):
“The President shall,
so far as practicable, afford every opportunity to employers and
employees in any trade or industry or subdivision thereof with respect
to which the conditions referred to in clauses (1) and (2) of subsection
(a) prevail, to establish by mutual agreement, the standards as to the
maximum hours of labor, minimum rates of pay, and such other conditions
of employment as may be necessary in such trade or industry or
subdivision thereof to effectuate the policy of this title; and the
standards established in such agreements, when approved by the
President, shall have the same effect as a code of fair competition,
approved by the President under subsection (a) of section 3.”
[76]
Ruling: “A.L.A. Schechter Poultry Corporation v. United States.” U.S.
Supreme Court, May 27, 1935. Case 295 U.S. 495. Decided 9-0.
Majority: Hughes, Brandeis, Roberts, Sutherland, Van Devanter,
McReynolds, Butler. Concurring: Cardozo, Stone.
http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/295/495.html
Extraordinary
conditions may call for extraordinary remedies. But the argument
necessarily stops short of an attempt to justify action which lies
outside the sphere of constitutional authority. 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. … Such
assertions of extraconstitutional authority were anticipated and
precluded by the explicit terms of the Tenth Amendment- ‘The powers not
delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the
people.’
…
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. In view of
the scope of that broad declaration and of the nature of the few
restrictions that are imposed, the discretion of the President in
approving or prescribing codes, and thus enacting laws for the
government of trade and industry throughout the country, is virtually
unfettered. We think that the code-making authority thus conferred is an
unconstitutional delegation of legislative power.
…
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
…
Without in any way
disparaging this motive, it is enough to say that the recuperative
efforts of the federal government must be made in a manner consistent
with the authority granted by the Constitution.
[78]
Book: The Supreme Court Reborn: The Constitutional Revolution in the
Age of Roosevelt. By William E. Leuchtenberg. Oxford University
Press, 1995. Page 86:
“At a Cabinet meeting
on July 11, 1935… Secretary of the Interior Harold L. Ickes noted in his
diary:
[82]
Book: Documents of American History. Volume 2 (since 1898).
Edited by Henry Steele Commager. Prentice-Hall, 1973. Page 382:
PROPOSED BILL.
Be it enacted,
That—
(a) When any judge of
a court of the United States, appointed to hold his office during good
behavior, has heretofore or hereafter attained the age of seventy years
and has held a commission or commissions as judge of any such court or
courts at least ten years, continuously or otherwise, and within six
months thereafter has neither resigned nor retired, the President, for
each so judge who has not so resigned or retired, shall nominate, and by
and with the advice and consent of the Senate, shall appoint one
additional judge to the court to which the former is commissioned…
(b) … No more than
fifty judges shall be appointed [under subsection (a)], nor shall any
judge be so appointed if such appointed would result in (1) more than
fifteen members of the Supreme Court of the United States…
[84]
Book: Documents of American History. Volume 2 (since 1898).
Edited by Henry Steele Commager. Prentice-Hall, 1973. Pages 383-7:
ADDRESS BY THE
PRESIDENT OF THE UNITED STATES, MARCH 9, 1937
…
But the framers went
further. Having in mind that in succeeding generations other problems
then undreamed of would become national problems, they gave the Congress
the ample broad powers to “levy taxes and provide for the common
defense and general welfare of the United States.”
…
The Court… has
improperly set itself up as a third House of Congress—a
superlegislature, as one of the Justices has called it—reading into the
Constitution words and implications which are not there, and which were
never intended to be there. We have, therefore, reached the point as a
Nation where we must take action to save the Constitution from the Court
and the Court from itself.
…
Our difficulty with
the Court today rises not from the Court as an institution but from the
humans beings within it.
[88]
Ruling: “West Coast Hotel v. Parrish.” U.S. Supreme Court, March
29, 1937. Case 300 U.S. 379. Decided 5-4. Majority: Hughes, Brandeis,
Benjamin N. Cardozo, Roberts, Stone. Dissenting: Sutherland, Butler,
McReynolds, Van Devanter.
[89]
Ruling: “National Labor Relations Board v. Jones and Laughlin Steel.” U.S. Supreme Court, April 12, 1937. Case 301 U.S. 1. Decided 5-4.
Majority: Hughes, Brandeis, Cardozo, Roberts, Stone. Dissenting:
McReynolds, Butler, Sutherland, Van Devanter.
[90]
Ruling: “National Labor Relations Board v. Friedman-Harry Marks Clothing
Company.” U.S. Supreme Court, April 12, 1937. Case 301 U.S. 58.
Decided 5-4. Majority: Hughes, Cardozo, Roberts, Stone, Brandeis.
Dissenting: McReynolds, Van Devanter, Sutherland, Butler.
[94]
Ruling: “Stewart Machine Company v. Davis.” U.S. Supreme Court.
May 24, 1937. Case 301 U.S. 548. Decided 5-4. Majority: Cardozo,
Brandeis, Hughes, Roberts, Stone. Dissenting: McReynolds. Separate
dissent: Sutherland, Van Devanter. Separate dissent: Butler.
TITLE III-GRANTS TO
STATES FOR UNEMPLOYMENT COMPENSATION ADMINISTRATION APPROPRIATION
SECTION 301. For the
purpose of assisting the States in the administration of their
unemployment compensation laws, there is hereby authorized to be
appropriated, for the fiscal year ending June 30, 1936, the sum of
$4,000,000, and for each fiscal year thereafter the sum of $49,000,000,
to be used as hereinafter provided.
PAYMENTS TO STATES
SECTION 901. On and
after January 1, 1936, every employer (as defined in section 907) shall
pay for each calendar year an excise tax, with respect to having
individuals in his employ, equal to the following percentages of the
total wages (as defined in section 907) payable by him (regardless of
the time of payment) with respect to employment (as defined in section
907) during such calendar year:
(1) With respect to employment during the calendar year 1936 the rate
shall be 1 per centum;
(2) With respect to employment during the calendar year 1937 the rate
shall be 2 per centum;
(3) With respect to employment after December 31, 1937, the rate shall
be 3 per centum.
CREDIT AGAINST TAX
Section 902. The
taxpayer may credit against the tax imposed by section 901 the amount of
contributions, with respect to employment during the taxable year, paid
by him (before the date of filing of his return for the taxable year)
into an unemployment fund under a State law. The total credit allowed to
a taxpayer under this section for all contributions paid into
unemployment funds with respect to employment during such taxable year
shall not exceed 90 per centum of the tax against which it is credited,
and credit shall be allowed only for contributions made under the laws
of States certified for the taxable year as provided in section 903.
….
[97]
Book: Crime and the Justice System in America: An Encyclopedia.
Edited by Frank Schmalleger with Gordon M. Armstrong. Greenwood
Publishing, 1997. Page 179:
“PARENS PATRIAE.
Literally, “parent of the country.” This legal concept serves as the
basis for state intervention when the state removes a delinquent from
the hone of his or her parents. Effectible, parens patriae is an
assumption of responsibility by the state for the welfare of the
delinquent child.”
[98]
Ruling: “Carter v. Carter Coal Company.” U.S. Supreme Court, May
18, 1936. Case 298 U.S. 238. Decided 6-3. Majority: Sutherland, Butler,
McReynolds, Roberts, Van Devanter. Concurring: Hughes. Dissenting:
Cardozo, Brandeis, Stone.
http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/298/238.html
The convention,
however, declined to confer upon Congress power in such general terms;
instead of which it carefully limited the powers which it thought wise
to intrust 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, United States v. Butler, supra,
297 U.S. 1
, at page 64, 56 S.Ct. 312, 102 A.L.R. 914; and no such authority
exists, save as the general welfare may be promoted by the exercise of
the powers which are granted. Compare Jacobson v. Massachusetts,
197 U.S. 11, 22
, 25 S.Ct. 358, 3 Ann.Cas. 765.
…
Replying directly to
the suggestion advanced by counsel in Kansas v. Colorado {1907},
206 U.S. 46, 89
, 90 S., 27 S.Ct. 655, 664, to the effect that necessary
powers national in their scope must be found vested in Congress, though
not expressly granted or essentially implied, this court said:
‘But the proposition
that there are legislative powers affecting the nation as a whole which
belong to, although not expressed in the grant of powers, is in direct
conflict with the doctrine that this is a government of enumerated
powers. That this is such a government clearly appears from the
Constitution, independently of the Amendments, for otherwise there would
be an instrument granting certain specified things made operative to
grant other and distinct things. This natural construction of the
original body of the Constitution is made absolutely certain by the 10th
Amendment. This Amendment, which was seemingly adopted with prescience
of just such contention as the present, disclosed the widespread fear
that the national government might, under the pressure of a supposed
general welfare, attempt to exercise powers which had not been granted.
With equal determination the framers intended that no such assumption
should ever find justification in the organic act, and that if, in the
future, further powers seemed necessary, they should [298 U.S. 238, 294]
be granted by the people in the manner they had provided for amending
that act.’
The determination of
the Framers Convention and the ratifying conventions to preserve
complete and unimpaired state self-government in all matters not
committed to the general government is one of the plainest facts which
emerges from the history of their deliberations. And adherence to that
determination is incumbent equally upon the federal government and the
states. 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.”
[99]
Ruling: “A.L.A. Schechter Poultry Corporation v. United States.” U.S.
Supreme Court, May 27, 1935. Case 295 U.S. 495. Decided 9-0.
Majority: Hughes, Brandeis, Roberts, Sutherland, Van Devanter,
McReynolds, Butler. Concurring: Cardozo, Stone.
http://caselaw.lp.findlaw.com/scripts/printer_friendly.pl?page=us/295/495.html
Extraordinary
conditions may call for extraordinary remedies. But the argument
necessarily stops short of an attempt to justify action which lies
outside the sphere of constitutional authority. 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. … Such
assertions of extraconstitutional authority were anticipated and
precluded by the explicit terms of the Tenth Amendment- ‘The powers not
delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the
people.’
…
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. In view of
the scope of that broad declaration and of the nature of the few
restrictions that are imposed, the discretion of the President in
approving or prescribing codes, and thus enacting laws for the
government of trade and industry throughout the country, is virtually
unfettered. We think that the code-making authority thus conferred is an
unconstitutional delegation of legislative power.
…
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
…
Without in any way
disparaging this motive, it is enough to say that the recuperative
efforts of the federal government must be made in a manner consistent
with the authority granted by the Constitution.