Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. 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!
justshutupandtakeit, I'd like to hear your rebuttal to Mr. Madison. I am extremely curious about it, in fact.
The very fact that this discussion has to occur is substantiation of my argument that this document is not simple and that major differences of opinion can occur over the meaning of punctuation marks and sentence structure. To claim that this is simple is like claiming Faulkner is simple. This is a sentence of hundreds of words and was not written by Madison but by the Committee on Style. I don't have Hamilton's analysis of it handy but believe it to be a little different. He was also on the Committee and probably had more discussions with Madison about the document than anyone else. At that time they were very close allies even friends. So I will assume that Madison's description of the intent of the phrase is correct. However...
1)from my understanding of grammar the phrases enumerating what funds could be spent for are all independent clauses not examples of what is the "general welfare." My belief is that when a list is to be imparted it follows a : not a ; perhaps an English major could clarify this. Maybe usage was different in 1787.
But all those phrases ending with ; seem to be seperate allowable uses.
2)Madison's complaint that it could be construed to allow funds to be used for destruction of the freedom of the press apparently remained a concern with many so the Bill of Rights was adopted to clarify this point. M. and H. did not believe a BofR was necessary.
3)The section "If the different parts...." is not entirely clear to me but I do not agree that it is logical to construe the specified uses as something to "be denied any signification whatsoever." The clauses appear to be independent of each other.
4)Since Madison refers to the identity of language in the Articles etc. it appears that this is a conventional phrase probably not given much thought before its useage. A rhetorical device can come back to haunt you in a document like this when every word is scrutinized.
5)Why is the term even there if it is to be ignored? It certainly has created confusion, controversey and mischief.
6) AJA I have stated elsewhere that I believe that the 10th amendment is essentially meaningless but for noting that State internal police powers are affirmed, judicial, health, etc. it has no meaning that I have been able to discover as regards the relation between the state and the federal governments or that between the state governments with each other. The 10th is significant in its apparent lack of impact on constitutional law. I have challenged those who believe it to be anything other than a rhetorical device to refer me to some case law where it is referenced.