If anyone can post a link for the whole letter from an archival source, it would be greatly appreciated.
My apologies to all. I had this quote down as being from the letter to Edmund Pendleton, but as it turns out it came from a speech he gave shortly thereafter.
Doesn’t change the substance at all, though.
AS TO THE POWERS of The FEDERAL GOVERNMENT
MR. MADISON’S Speech on the Cod Fishery Bill, Feb. 7, 1792.
It is supposed by some gentlemen, that Congress had authority not only to grant hounties in the sense here used, merely as a commutation for drawback, but even to grant them under a power by virtue of which they may do any thing which they may think conducive to the general welfare! This, sir, in my mind, raises the important and fundamental question, whether the general terms which have been cited, are to be considered as a sort of caption or general description of the specificd powers, and as having no further meaning, and giving no further powers, than what is found in that specification, or as an abstract and indefinite delegation of power extending to all cases whatever; to all snrh, at least, as will admit the application of money, which is giving as much latitude as any government could well desire.
I, sir, have always conceived—I helieved those who proposed the Constitution conceived—it is still more fully known, and more material to observe, that those who ratificd the Constitution conceived—that this is not an indefinite Government, deriving its powers from the general terms prefixed to the specificd powers—but a limited government tied down to the specified powers, which explain and define the general terms.
It is to be recollected that the terms “common defence and general welfare,” as here used, are not novel terms, first introduced into this Constitution. They are terms familiar in their construction, and well known to the people of America. They are repeatedly found in the Articles of Confederation, where, although they are susceptible of as great a latitude as can be given them by the context here, it was never supposed or pretended that they conveyed any such power as is now assigned to them. On the contrary, it was always considered clear and certain, that the old Congress was limited lo the enumerated powers, and that the enumeration limited and explained the general terms. I ask the gentlemen themselves whether it ever was supposed or suspected that the old Congress could give away the money of the States, in hounties to encourage agriculture, or for any other purpose they pleased. If such a power had been possessed by any hody, it would have bcen much less impotent, or have borne a very different character from that universally ascribed to it.
The novel idea now annexed to those terms, and never before entertained by the friends or enemies of the government, will have a further consequence which cannot have bcen taken into the view of the gentlemen. Their construction would not only give Congress the complete legislative power I have stated, it would do more—it would supersede all the restrictions understood at present to lie on their power with respect to a judiciary. It would put it in the power of Congress to establish courts throughout the United States, with cognizance of suits hetween citizen and citizen, and in all cases whatsoever. This, sir, seems to he demonstrable: for if the clause in question really authorizes Congress to do whatever they think fit, provided it be for the general welfare, of which they are to judge, and money can be applied to it, Congress must have power to create and support a judiciary establishment, with the jurisdiction exlending to all cases favorable, in their opinion, to the general welfare, in the same manner as they have power to pass laws, and apply money, providing it be in any other way for the general welfare. I shall be reminded, perhaps, that, according to the terms of the Constitution, the judicial power is to extend to certain cases only, not to all cases. But this circumstance can have no effect in the argument, it being presupposed by the gentlemen that the specification of certain objects does not limit the import of the general terms. Taking these terms as an abstract and indefinite grant of power, they comprise all the objects of the legislative regulations, as well such as fall under the judiciary article, in the Constitution, as those falling immediately under the legislative article; and if the partial enumeration of objects in the legislative article does not, as these gentlemen contend, limit the general power, neither will it be limited by the partial enumeration of objects in the judiciary article.
There are consequences, sir, still more extensive, which, as they follow clearly from the doctrine combatted, must either be admitled, or the doctrine must he given np. If Congress can employ 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 appoint 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, establishing, in like manner, schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post roads; in short, every thing, from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress: for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the general welfare.
The language held in various discussions of this house is a proof that the doctrine in question was never entertained by this hody. Arguments, wherever the subject would permit, have constantly been drawn from the peculiar nature of this government, as limited to certain enumerated powers, instead of extending, like other Governments, to all cases not particularly excepted. In a very late instance, I mean the debate on the Representation Bill, it must he remembered that an argument much used, particularly by gentlemen from Massachusetts, against the ratio of 1 for 30,000, was, that this Government was unlike the State Governments, which had an indefinite variety of objects within their power, that it had a smaller number of objects only attended to, and therefore that a smaller number of representatives would he sufficient to administer it.
Argnments have been advanced to show that hecause, in the regulation of trade, indirect and eventual encouragement is given to manufactures, therefore Congress have power to give money in direct bounties, or to grant it in any other way that would answer the same purpose. But surely, sir, there is a great and obvious difference, which it cannot he necessary to enlarge upon; a duty laid on imported implements of husbandry would, in its operation, be an indirect tax on exported produce; but will any ouesay, that by virtue of a mere power to lay duties on imports, Congress might go directly to the produce or implements of agriculture, or to the articles exported? It is true, duties on exports are expressly prohibited; but if there were no article forbidding them, a power directly to tax exports would never he deduced from a power to tax imports, although such a power might indirectly and incidentally affect exports.
In short, sir, without going farther into the subject, which I should not have here touched on at all, but for the reasons already mentioned, I venture to declare it as my opinion, that were the power of Congress to be established in the latitude contended for, it would subvert the very foundation, and transmute the very nature of the limited government established by the people of America: and what inferences might be drawn, or what consequences ensue from such a step, it is incumbent on us all to consider.