Not In the Constitution; G. Nilsson

NOT IN THE CONSTITUTION THE CONSTITUTION of Vermont reminds us: ... that frequent recurrence to fundamental principles and a firm adherence to justice, moderation, temperance, industry, and frugality are absolutely necessary to preserve the blessings of liberty and keep government free. In addition to the threats of danger from outside of the United States, and subversion within, the constitu tional republic of the United States is being threatened by the concentration of power in the federal govern ment in spite of, and contrary to, the "checks and bal ances" of the Constitution. Much of such concentration has been due to two World Wars and the Korean War, but more especially by twisting out of shape the interstate commerce clause of the Constitution (Article I, Section 8, Clause 3), us ing taxing power for punitive purposes instead of for Mr. Nilsson, who has practiced law in Los Angeles since 1924, is a member of the American Bar Association's Committee on American Citizenship. This article first appeared in the ABA Journal, Janu ary 1961.

136 NOT IN THE CONSTITUTION 137 raising revenue as authorized, and by misusing the gen eral welfare clause. More and more power is being seized by, or surren dered to, the federal government under the guise of the alleged general welfare clause of Article I, Section 8, Clause 1 of the Constitution, which contains the follow ing language: 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 ... This clause is followed by sixteen other clauses speci fying the various powers of Congress-Clause 2, to bor row money; Clause 3, to regulate foreign and interstate commerce, etc.; then Clause 18 gives the Congress power "to make laws necessary to carry into execution the fore going powers." This last clause would have been un necessary if Clause I gave "general welfare power."

For 140 years it was generally recognized that the quo tation from Clause 1 was not a grant of "general wel fare power." Many Presidents vetoed acts passed by Congress for that reason. For instance, President Andrew Jackson, when he vetoed a bill for public improvements, stated: Weare in no danger from violations of the Constitution from which encroachments are made upon the personal rights of the citizen ... But against the dangers of unconstitutional acts which, instead of menacing the. vengeance of offended authority, proffer local advantages and bring in their train the patronage of the government, we are, I fear, not so safe. Early in the 1930's some individual "discovered" that 138 GEORGE W. NILSSON the clause granted "general welfare power," and more and more this has been used to pass legislation based solely on this alleged grant of general welfare power. The rush to pass "welfare" legislation for various pres sure groups calls to mind an item in the joke column of Pay Dirt J a mining magazine published in Phoenix, Arizona (unfortunately, it is more tragic than humorous): If a politician tries to buy votes with private money, he is a dirty crook; but if he tries to buy them with the people's own money, he's a great liberal.

As an illustration of how this alleged "welfare" clause is being misused, here is a quotation from a resolution passed June 15, 1959, at the conference of mayors held in Los Angeles, requesting additional federal funds for urban renewal. It begins as follows: WHEREAS, The redevelopment of the blighted and deterior ating sections of American cities is vital to the welfare and prosperity of the entire nation ... This, of course, is not a statement of fact but is a self serving declaration, because the deterioration of cities is due to the failure of the cities to enforce their building and health regulations, and its correction is purely a local matter. That statement is just as illogical as to, say that this article is printed with white ink on black paper. On July 8, 1960, during the Democratic Convention at Los Angeles, the newspapers reported that the mayors of five substantial cities had appeared before the Demo cratic Platform Committee and requested a statement in the platform recommending the establishment in the federal government of a "Department of Urban Affairs"

which would have jurisdiction over "such problems as NOT IN THE CONSTITUTION 139 inadequate housing, residential and industrial slums, double shift schools, inefficient mass transit systems, con gested streets, water shortages, and sewage disposal." Everyone of these problems is purely local. If the local communities are unable to take care of them, that tragic conclusion is an acknowledgment that the people are unable to govern themselves, and that the principles stated in the Declaration of Independence, the Constitu tion, and the Bill of Rights are incorrect. With such a hypothesis no American lawyer will agree. When the Constitution was completed and ready to be signed, Benjamin Franklin made a speech in the course of which he said: I think a General Government necessary for us, and there is no form of government} but what may be a blessing to the people if well administered; and believe further, that this is likely to be well administered for a course of years, and can only end in despotism} as other forms have done before it, when the people shall become so corrupted as to need despotic government" being incapable of any other.

Rules for Interpretation There is a general rule of law that where the state ment of a general proposition is followed by specific prOVISIons, the latter prevail. This rule is stated by James Madison in Federalist Paper No. 41 and by Alex ander Hamilton in Federalist Paper No. 83. It is applied by Mr. Justice Story to Article I, Section 8 of the Con stitution, enumerating the powers of Congress, in his book on the Constitution in Sections 909, 910, and 911. He shows that by Clauses 2 to 17, inclusive, specific 140 GEORGE W. NILSSON powers limit Clause 1, referring to general welfare. Sec tion 910 reads in part: 910 . . . Nothing is more natural or common than first to use a general phrase, and then to 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 no one ought to charge on the enlightened authors of the Constitution. It would be to charge them either with premeditated folly or premeditated fraud.

Another yardstick to be used in determining the mean ing of the general welfare clause is discussed below; i.e., that the powers delegated to the United States by the Constitution are few, defined, and limited. Here let us read a relatively modern statement of that rule: ] ustice Frankfurter, in the opinion in Polish Alliance v. National Labor Relations Board, 322 U. S. 643, 650 (1943), said: The interpenetrations of modern society have not wiped out state lines. It is not for us to make inroads upon our fed eral system either by indifference to its maintenance or exces sive regard for the unifying forces of modern technology. Scholastic reasoning may prove that no activity is isolated with in the boundaries of a single state, but that cannot justify ab sorption of legislative power by the United States over every activity. Climate of Opinion in 1787 In 1787, when the Constitution was adopted, the col onists had been through eight years of war and four years of "a critical period." Knowing what led up to the war, and reading the charges in the Declaration of IndependNOT IN THE CONSTITUTION 141 ence, can anyone for a minute think that the colonists generally, and the members of the convention specific ally, would have adopted a constitution which granted general welfare powers to the federal government?

The resistance to the adoption of the Constitution, which will be discussed hereafter, shows what the people generally felt. This is summarized by Albert J. Beveridge in his great biography, The Life of John Marshall, in Volume I, Chapter 10, where he writes about the convention called in the State of Virginia for the purpose of discussing the ratification of the proposed United States Constitution. At page 371 he describes the general feeling of the peo ple about a strong central government in these words: They [who resisted the Constitution] had on their side the fears of the people who, as has appeared, looked on all gov ernment with hostility, and on a great central Government as some distant and monstrous thing, too far away to be within their reach, too powerful to be resisted, too high and exalted for the good of the common man, too dangerous to be tried. It was, to the masses, something new, vague and aw ful; something to oppress the poor, the weak, the debtor, the settler; something to strengthen and enrich the already strong and opulent, the merchant, the creditor, the financial interests.

True, the people had suffered by the loose arrangement un der which they now lived; but, after all, had not they and their "liberties" survived? And surely they would suffer even more, they felt, under this stronger power; but would they and their "liberties" survive its "oppression"? They thought not. Thomas Jefferson made the same point in a letter in 1823: I have been blamed for saying that a prevalence of the doc trine of consolidation would one day call for reformation or 142 GEORGE W. NILSSON revolution. I answer by asking if a single State of the Union would have agreed to the Constitution had it given all powers to the General Government? If the whole opposition to it did not proceed from the jealousy and fear of every State being subjected to the other States in matters merely its own? And also is there any reason to believe the States more dis posed now than then to acquiesce to this general surrender of all their rights and powers to a consolidated government, one and undivided? [Italics added.] On February 16, 1783, four years before the Constitu tional Convention, Pelatiah Webster published a pam phlet containing his idea of a proposed constitution for the United States. The whole draft can be found in The Origin and Growth of the Ameri.can Constitution, by Hannis Taylor, in an appendix beginning at page 529.

In paragraph 7 of his proposed Constitution, Pelatiah Webster says: I propose further that the powers of Congress, and all other departments acting under them, shall all be restricted to such matters only of general necessity and utility' to all the States as cannot come within the jurisdiction of any particular State, or to which the authority of any particular State is not com petent, so that each particular State shall enjoy all sovereignty and supreme. authority to all intents and purposes, excepting only those high authorities and powers by thenl delegated to Congress for the purposes of the general union. [Italics added.] Articles of Confederation Article VIII of the Articles of Confederation begins with the following language: "All charges of war and of expences that shall be incurred for the common defence and general welfare ..."

NOT IN THE CONSTITUTION 14:l James Madison pointed out in a letter to Edmund Pendleton, dated January 21, 1792, that the "general welfare clause" had been copied from the Articles of Confederation, and then said: ... Where it was always understood as nothing more than a general caption to specific powers, and it is a fact that it was preferred in the new instrument for that very reason as less than any other to misconstruction. [See ] efJerson and Madison, by Adrienne Koch, pages 128 and 129, and Irving Brant's Madison, Volume 3, Father of the Constitution, page 138.] Constitutional Convention Debates A summary of the day-by-day proceedings of the Con stitutional Convention of 1787 is found in Charles War ren's book, The Making of the Constitution. From a study of the records of the Convention, it will appear that from time to time efforts were made by some delegates to have the Constitution grant broad general powers to the federal government. Each time such proposal was advanced, it was rejected.

Beginning on page 464 is a· discussion of "The Taxing Power and the General Welfare Clause." At page 474 occurs this statement: In Governor Livingston's Committee Report of August 21, these words had been used with reference to prior debts, and merely described them as having been incurred during the late war "for the common defence and general welfare ..." On page 475 Mr. Warren says: Some words evidently had to be added that would make clear the power of Congress to levy taxes for all the National 144 GEORGEW. NILSSON purposes set forth in the grants of power subsequently speci fied in this section. Evidently the. Committee selected these words, "to provide for the common defence and general wel fare," as comprising all the other purposes for which Congress was to be empowered to levy and collect taxes. They selected these words as embracing all the subsequent limited grants of power which the Committee of Detail, in its Report of August 6, had specified as constituting that amount of common defence and general welfare which the National Government ought to control and as to which ought to have power of leg islation. In other words, the phrase "to provide for the gen eral welfare" is merely a general description of the amount of welfare which was to be accomplished by carrying out those enumerated and limited powers vested in Congress-and no others. [Italics added.] [See also James Madison by Irving Brant, Volume 3, Father of the Constitution, Chapter 10, be ginning at page 132, which is entitled "General Power or Enumeration. "] Debates in the Various States History tells us that in 1787 there was great opposi tion to the adoption of the proposed new Constitution.

As a matter of fact, it squeaked through by a very few votes in a number of states. For instance, Massachusetts 187 to 168, Virginia 89 to 79, and New York 30 to 27, and then only on condition that a Bill of Rights be added. The Federalist Papers were written by Alexander Hamilton, James Madison, and John Jay in support of the adoption of the Constitution, principally in connec tion with the debates in New York, where there was strong opposition to the adoption of the Constitution. In Federalist Paper No. 41, James Madison said (after NOT IN THE CONSTITUTION 145 pointing out the objections to the clause "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 7 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 significa tion whatsoever? For what purpose could the enumeration of particular powers be inserted 7 if these and all others were meant to be included in the preceding general power? Nothing is more natural or common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.

[Italics added.] Only Lhnited Powers In considering the question of whether this "general welfare" clause of Article I, Section 8, Clause I is a grant of power, we must also remember that the powers granted to the federal government were few and defined. James Madison, in Federalist Paper No. 45, said: The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain to the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiations and foreign commerce; with which last the power of taxation will, for the most part, he con nected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, con cern the lives, liberties and properties of the people, and the internal order~ improvement and prosperity of the State.

[Italics added.] 146 GEORGE W. NILSSON Alexander Hamil ton, himself, who argued in the Con stitutional Convention for general instead of particular enumeration of powers, nevertheless said in Federalist Paper No. 83: The plan of the Convention declares that the power of Con gress or, in other words, of the "national legislature," shall extend to certain enumerated cases. This specification of par ticulars evidently excluded all pretension to a general legisla tive authority, because an affirmative grant of special powers would be absurd~ as well as useless~ if a general authority was intended. [Italics added.] Since the people were persuaded to adopt the Con stitution on the basis that the federal government was being given only limited and specified powers, how dare anyone, in good conscience, now take the position that the words "general welfare" give the federal government unlimited power?

This principle was restated by Franklin D. Roosevelt on March 2, 1930, while he was Governor of New York, in a speech which was entitled "An Address on State Rights" (Collected Papers, Volume I, page 569). He said in part: The preservation of this home rule by the states is a funda mental necessity if we are to remain a truly united country ... to bring about government by oligarchy masquerading as democracy it is fundamentally essential that practically all authority and control be centralized in our national govern ment, the individual sovereignty of our states must first be destroyed ... Weare safe from the danger of any such departure from the principles upon which this country was founded just so long as the individual home rule of the states is scrupulously preserved and fought for whenever they seem in danger. Thus NOT IN THE CONSTITUTION 147 it will be seen that this home rule is a most important thing a most vital thing if we are to continue along the course on which we have so far progressed with such unprecedented success.

Bill of Rights In many of the states, the Constitution was adopted only when it was accompanied by a resolution demanding that a Bill of Rights be added to the Constitution. If the people of the various states. were satisfied with the Constitution as written, they certainly would not have demanded the added protection of the Bill of Rights. As pointed out above, certainly no state would have adopted the Constitution if the Congress had been given carte blanche to pass any law or do anything which it desired or which it felt was for the "general welfare." This demand for a Bill of Rights, therefore, should be sufficient to prove that the Constitution, and particularly Article I, Section 8, Clause I, did not grant general wel fare power to the federal government. True to his promise, James Madison, in the First Con gress, which met in 1789, caused to be passed a Bill of Rights containing twelve sections, ten of which were adopted and went into effect December 15, 1791.

This Bill of Rights, and particularly the Ninth and Tenth Amendments, are further and conclusive proof that the clause that we are discussing did not grant any authority to the federal government to pass any laws based on "general welfare powers."

148 GEORGE W. NILSSON Statements by Contemporaries On December 5, 1791, Secretary of the Treasury Alex ander Hamilton presented to the Congress his "Report on Manufactures." Madison delivered an address in Congress against the Report, in which he said in part: If Congress can apply money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may establish teachers in every State, county and parish, and pay them out of the public Treasury; they may take into their own hands the education of children, estab lishing in like manner schools throughout the Union; they may undertake the regulation of all roads, other than post roads. In short, everything, from the highest object of State legislation, down to the most minute object of policy, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the gen eral welfare.

The report was pigeonholed, the first major defeat for one of Hamilton's most cherished policies. (JefJerson and Madison, by Adrienne Koch, page 129.) Further on the same question, James Madison, on January 1, 1792, in a letter to Henry Lee, Governor of Virginia, said in part: What think you of the commentary ... on the term "gen eral welfare"? ... The federal government has been hitherto limited to the specified powers, by the Greatest Champions for Latitude in expounding those powers ... If not only the means~ but the objects are unlimited~ the parchment had bet ter be thrown into the fire at once. [Italics added.] And in a letter to Edmund Randolph (January 21, 1792), said: NOT IN THE CONSTITUTION 149 If Congress can do whatever in their discretion can be done by money~ and will promote the general welfare~ the govern ment is no longer one possessing enumerated powers~ but an indefinite one subject to particular exceptions. [Italics added.] [Jefferson and Madison~ by Adrienne Koch, page 128.] Thomas Jefferson had the same views. He wrote to Albert Gallatin in 1817, about the General Welfare Clause, of which he said: You will have to learn that an act for internal improve ment, after passing both houses, was negatived by the Presi dent. The act was founded, avowedly, on the principle that the phrase in the Constitution which authorizes the Congress "to lay taxes, to pay the debts and provide for the general welfare," was an extension of the powers specifically enumer ated 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 FedeJ;'alists and the Republicans, that Congress had not unlimited powers to provide for the general welfare~ but was restrained to those specifically enumerated; and that, as it was never meant that they should provide for that wel fare but the exercise of the enumerated powers, so it could not have meant that they should raise money for purposes which the enumeration did not place under their action; con sequently, that the specification of powers is a limitation on the purposes for which they may raise money. [Italics added.] [See Undermining the Constitution~ by Thomas James Nor ton, page 191.] Abraham Baldwin, a member of the Constitutional Convention, while a member of Congress, on June 17, 1798, said in the Congress: . . . to provide for the common defence and general wel fare had never been considered as a source of legislative power, as it is only a member introduced to limit the other parts of the sentence. [Undermining the Constitution~ by Thomas James Norton, page 189.] 150 GEORGE W. NILSSON Conclusion (a) In a book recently published, analyzing some of the decisions of the modern Supreme Court, the writer says: "Enthroned at last, were Hamilton's bold national istic views . . ."

To say these modern ideas of "general welfare power" are those of Alexander Hamilton is to malign him. Alex ander Hamilton was a great patriot and statesman. His ideas of a new government were far different from those embodied in the Constitution, but after the Constitution was adopted, he faithfully and enthusiastically sup ported it. For instance, he wrote most of The Federalist Papers. Even though Alexander Hamilton had espoused such ideas as are now ascribed to him, such ideas were not accepted as part of the Constitution as finally adopted and, therefore, must not be used to interpret the Constitution. Since Alexander Hamilton's views were rejected by the Constitutional Convention of 1787 (not even being re ferred to a committee, Hannis Taylor, page 200); since Alexander Hamilton was absent from the Convention about one-half of the time, once from June 29 to the middle of August 1787, and since his views against the inclusion of a Bill of Rights were rejected, the foregoing statement that his views are now being accepted is a clear acknowledgment that the spirit and letter of the Cons titu tion as written are now being perverted.

Against this view attention is called to The Federalist NOT IN THE CONSTITUTION 151 Papers which are referred to and quoted in this article. It is therefore clear from history, common sense, the records of the Constitutional Convention, The Federal ist Papers, the debates in the state ratification conven tions, and precedents followed for more than 140 years, that THERE IS NO GRANT OF GENERAL WELFARE POWER IN THE CONSTITUTION OF THE UNITED STATES. (b) While it would seem that such general welfare power is not needed, if it should be determined that it is necessary, then the amending clause of the Constitu tion should be followed, as was pointed out by George Washington in his Farewell Address: If, in the opinion of the people, the distribution or modi fication 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 instru ment for good, it is the customary weapon by which free gov ernments are destroyed. The precedent must always greatly overbalance, in permanent evil, any partial or transient benefit which the use can at any time yield. [Italics added.] The dire results of undermining the Constitution were pointed out by Daniel Webster in his eulogy of George Washington in 1832, where he said in part: Other misfortunes may be borne, or their effects over come ...

But who shall reconstruct the fabric of demolished govern ment? Who shall rear again the well-proportioned columns of constitutional liberty? Who shall frame together the skill ful architecture which unites national sovereignty with State rights, individual security and Public prosperity? (c) Every lawyer when he is admitted to the Bar takes 152 GEORGE W. NILSSON an oath to "uphold, defend, and protect the Constitu tion of the United States." Since the Constitution is being ignored, misconstrued, or by-passed by legislation, by court decisions, and by executive action, it is time that fundamental principles of the Constitution be re-examined, and that every citizen, as well as every lawyer, take his place on the battle line in a new crusade to re-establish the principles and the spirit of the Declaration of Independence, the Constitution, and the Bill of Rights.