The Danger to Governments, Founded on Written Constitutions, of Being Gradually Revolutionized by the Construction Placed on the Provisions of the Constitution by Those Who Administer the Governments

Oran Roberts

This may be done by enlarging and extending the powers conferred by a liberal construction, based upon the supposed reason and spirit of its provisions, so as to meet emergencies not anticipated and specifically provided for; by using the powers granted in such a manner as to accomplish objects incidentally, which were not embraced in the Constitution, and could not, therefore, be accomplished by direct action, and by not understanding the true meaning of its provisions, as they were designed to be understood by those who framed and adopted it, and thereby assuming powers never intended to have been granted.

The government of the United States has grown to gigantic proportions, reaching out in all directions.

The diversified objects to which its action is now devoted, would seem to justify the conclusion that its chief business is to promote the private pecuniary interests of persons, of classes of persons, and of corporations. Its greatest internal struggles are made, in its efforts to adjust and distribute its favors, both direct and indirect. The necessary result of this has been to facilitate the amassing capital in favored pursuits, which will inevitably engender the conflict between capital and organized labor. When that conflict reaches a crisis, and is settled, as it must be, then it may well be feared that our republican institutions will be changed, with a tendency either to anarchy or despotism, as the one or the other may be dominant.

Now the question is, did this direction, which has been given to the operations of the government, depend upon a proper construction of the provisions of the Constitution, in their application to occurring events from time to time, or did it result from such constructions as have been mentioned, as being calculated to produce the change in the government from its original design, as prescribed in the Constitution?

This result, in the objects to which its action is devoted, has been reached by a long series of measures, embracing the highest and most extensive powers of government. It has acquired additional territory, and largely extended its dominion, by conquest, and also by purchase, with money raised by transaction. It has furnished the people with a paper currency, by chartering banks, and by issuing treasury notes, and gold and silver certificates. It has furnished the people with inland transportation by the charter of and bounty to railroad companies. It has extended the field of commercial operation for the benefit of merchants, by bounties in money given to ship lines. It has given ship builders a bounty indirectly, in the monopoly given to them in furnishing vessels for the coast-wide trade. It has given a bounty in money to fishermen for exporting salted fish. It has caused a fish commission to breed and distribute fish of good quality throughout the country to supply the people with more abundant and cheaper food.

It gives a bounty by indirect protection to manufacturers, which is professedly intended to benefit the laborers employed, as well as the capitalists, who engage in manufacture. It gives a bounty by indirect protection to wool-growers and sugar planters. It has an educational bureau to promote the education of the people. It has a farming department to aid the farmers, horticulturists and orchardists. It is promoting the interests of stockmen, by employing veterinary surgeons to find out the causes of the diseases that kill their cattle and hogs. It applies money raised by taxation to give relief to sufferers from overflows of rivers, and epidemics within the States, and to establish quarantines to prevent epidemics from entering the country, by which the lives of the people will be endangered or destroyed. It promotes the intelligence, literary and scientific knowledge, and industrial skill of the people, by appropriating money in aid of great fairs, exhibited both at home and abroad. Nor has it been neglectful of the good morals and habits of the people, for it has taxed whiskey and tobacco an amount two or three times their merchantable values, to discourage the use of them. It gives pensions to persons after their services have terminated, both in the military and civil departments, and (to their widows also) without that compensation for the services rendered having been embraced in the contract of employment. Diamonds and some other tasteful objects are allowed to be imported under a comparatively low tariff, for the purpose, as it may be supposed, to elevate the people to an appreciation of the refinements and magnificence of the people in Europe and Asia. It has assumed the guardianship and education of the Indians, with all of its expensive and complicated consequences. It has proclaimed to the world what is called the Monroe doctrine, that no more monarchies, or greater monarchical influences are to be established, or tolerated on the American continent, which implies a right and a will to prevent them by the government of the United States. Without further enumeration this incomplete list may be closed by reference to its purchase of Alaska, in the Arctic regions of North America, for the benefit of the whalers and fur traders, and the expenditure of the people’s money in aid of expeditions to find the North pole for the purpose of (I must be excused for not having inventive imagination sufficient to complete this sentence).

All of these things may be admitted to be good of themselves, and beneficial to the people of the United States; still the question under consideration would not be settled. For just such results have been accomplished in England by the action of its government, which is an absolute sovereignty, with unlimited powers to do any and every thing practicable to promote the private, as well as public interests of its people, and to extend its dominion, rule and influence. It might be difficult to discover a great many things done by England for a century past to promote the private material interests of its people, that the government of the United States has not done, by the direct or indirect action, for the same purpose notwithstanding it is not a sovereignty, does not exercise any general absolutely sovereign powers, but was created, exists, and acts by authority of governmental powers, delegated to it by the people of the States, which powers, with the object expressed or implied in them, are few in number, and defined in the Constitution of the United States.

This assertion, as to the nature of the powers exercised by the government of the United States, is based upon the American theory of our governments, both federal and State, that the people are sovereign, and not the governments, which they have instituted by the delegation of certain defined powers to be exercised by them, as prescribed in the organic law, the written constitutions. The people occupy the position of a principal, and the government that of an agent, acting under a written power of attorney, which specifies the powers to be exercised by the functionaries of each department, and the objects, upon which the powers delegated are to be exercised. That the powers granted the different departments of the government of the United States were limited, might have been inferred, from the fact that they were delegated, and specifically set forth, but to leave no doubt about that, an amendment of the Constitution was very soon adopted, providing, that “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.” The provisions relating to the organic structure of the government, by division into three departments, and those relating to restrictions upon the governments of the United States and of the States, may be passed over for the present, as they have not contributed in any great degree to produce the results pertaining to the private material interests of the people, that have been partially enumerated.

To find that the powers, that have so contributed, are few in number, reference may be had to those granted to the Congress under, and by virtue of which, the legislative powers therein granted to it should be exercised. So far as they are necessary to be referred to, they are the following:

Sec. 8. The Congress shall have the power,

  1. To lay and collect Taxes, Duties, Imports and Excises to pay the Debts, and provide for the Common Defense and general welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.
  1. To borrow Money on the credit of the United States.
  1. To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.
  1. To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies, throughout the United States.
  1. To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures.
  1. To provide for the Punishment of counterfeiting the securities of Current Coin of the United States.
  1. To establish Post Offices and post Roads.
  1. To promote the Progress of Science and useful Arts, by securing, for limited Times, to Authors and Inventors, the exclusive rights to their respective Writings and Discoveries.
  1. To constitute Tribunals inferior to the Supreme Court.
  1. To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the law of nations.
  1. To declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.
  1. To raise and support Armies, but no Appropriation of Money to that use shall be for a longer Term than two Years.
  1. To provide and maintain a Navy.
  1. To make Rules for the Government and Regulation of land and naval Forces.
  1. To provide for the calling forth of the Militia to execute the Laws of the Union, suppress Insurrection, and repel Invasions.
  1. To provide for organizing, arming and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively the appointment of the Officers, and the Authority of training the Militia according to the Discipline prescribed by Congress.
  1. To exercise exclusive Legislation in all cases whatsoever over such District, etc., (referring to places for the seat of government, Forts, Magazines, Arsenals, Dock Yards and other needful Buildings ceded by the States).

It will be seen that the objects, upon which the powers are to be excercised, are embraced in the specification of the powers themselves respectively, and are for the most part indicated by the words commencing with capital letters written here, as they were written in the original instrument, on file in the Secretary of State’s office. (So certified by James Buchanan, when Secretary of State, in 1846.)

The objects specified, in declaring the powers granted, were exactly the things, and the only things intended to be accomplished by the execution of the powers respectively, which contained their appropriate objects. It may be truly asserted that there is not a single power granted to Congress, or to any department or officer that does not contain in plain language, or by reasonable and necessary inference, the specific object designed to be accomplished by the power specially granted. And this is, emphatically the case as to each and every one granted to Congress.

The objects for legislative action are plainly expressed in the powers that have been granted, but not so definitely with extent and limits, as to prevent differences of opinion in the construction necessary to determine what was actually meant by the expressions used in regard to them. The terms used must be interpreted in the light of the existing and antecedent circumstances, relating to the objects, as they must have been known to those who adopted the Constitution, so far as it is practicable at all times subsequently to ascertain them. To appreciate this as a means of interpretation it is only necessary to mention the words used, without explanation of their meaning being defined, because it was well understood by those who used them, such as taxes, imposts, excises, debts, common defense, general welfare, commerce, money, coin, postoffices and postroads, militia, courts, etc. Here it will be seen that the purposes for which the powers are granted are not fully expressed, but indicated by the use of terms from which the purposes can certainly be inferred. In the clause giving the power to coin money the purpose is not stated. But the purpose for which money is coined was then well and universally known to be to furnish to the people a circulating medium of fixed value. That is a liberal though necessary implication in the construction given to the clause. That liberal implication, however, has a well defined limitation, from the use of the words “money” and “coin,” which requires the circulating medium to be coined gold and silver, and not iron, steel, or precious stones or paper. A like limitation must be applied to the other objects in all the other general powers from the words used to indicate the objects.

The powers given “to lay and collect taxes,” etc., “to provide,” “to regulate,” and the like, were indefinite us to the manner and means to be used in the execution of the general powers, thus granted for the objects specified, and opened a wide field of discretion to be exercised by Congress in that regard. For such general grants of power would imply the incidental power to execute them. To furnish a guide to this necessary implication, another clause was inserted in the Constitution as follows:

  1. “To make all laws, whith shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

This clause, instead of enlarging the powers of Congress, was intended as a limitation and restriction of the broad, and indefinite implication of powers, that would otherwise have arisen, in the passage of laws, to carry out the other powers that are expressed in general terms, and confined Congress to the passage of such laws only as were necessary and proper for carrying into effect those general powers vested in it, and in other departments, and officers of the government. The general discretionary implication of power to execute other powers are therefore superseded and abrogated, by this special grant with its limitation. Whatever discretion is left, is in the determination of what laws would be necessary and proper, to carry into execution the general powers—that is, what laws, in view of the nature and terms of the grant of general powers, and of the objects to be accomplished by them respectfully, as indicated in the grants themselves, would reasonably be needed and appropriate to affect the objects contemplated and expressed, and those only. All of the powers granted, are granted only for the purpose of accomplishing the objects, expressed in connection with the grants of powers. The use of two words of limitation “necessary” and “proper” must have been for some useful purpose, having reference to the objects to be attained. Under this provision it was made the duty of Congress, first to determine exactly what was the particular object designed to be accomplished, by any one of the general powers granted to Congress, and with that object in view, and that alone; next, the law, under the auxiliary clause, should be shaped so as to directly effect that particular object; with a single purpose to that end, and no other, is a duty enjoined upon Congress, by the limitation, that it shall be only such a law as would be necessary and proper. If in any case any part of the law passed, under the auxiliary clause, was not necessary to effect the exact object expressed in the general power, it would be superfluous and unauthorized; and if it was not proper to effect such object alone, but was so shaped as to accomplish and with a design to accomplish some other object in addition to that expressed in the general power, thereby making it accomplish two distinct objects, one direct, and the other incidental, one expressed, and the other not expressed in the general power, then the law, so passed under this auxiliary power, would be unauthorized to the extent to which it was shaped and used to effect an object, not embraced in the Constitution.

If the main object accomplished was the one that was incidental and not expressed, and the law was so shaped as to show the design to effect the incidental object mainly, it would be a flagrant perversion of the powers granted, by which the objects of the governmental action might be indefinitely extended to all objects, limited only in their scope and diversity by the failure of adroit ingenuity to devise the perversions. This may be illustrated by reference to some of the general powers that have been quoted. (Part of the 5th.) The power “to coin money, regulate the value thereof,” etc.

Money meant coined gold and silver. Its value as coin being fixed, it would answer the purpose for which money is used. The objects embraced in the provision are money and its value when coined. The general power granted is to make money by coining gold and silver, and to fix a value to the money that is coined.

The use of the auxiliary power (clause 18 quoted), is to give authority for the passage of such laws as may be necessary and proper, to get charge of the gold and silver, establish a mint with its implements, and working force, and indicate the denominations, and the designs to be stamped thereon, and the values respectively of the money to be coined, together with the disposition of it when completed. If under the auxiliary power a law should be passed authorizing paper or parchment to be stamped, and a value to be fixed upon it as money, and requiring it to be used as money of the value fixed upon it, it would certainly be a flagrant perversion of the powers conferred on Congress in the clauses referred to (5th and 18th). This would follow from the words “money” and “coin” as used, which would limit the powers of Congress in providing for the people a circulating medium to the materials of gold and silver, coined into money.

Another general power is “To establish postoffices and post roads.” Here again the purpose is indicated by words descriptive of the necessary appurtenances, in carrying on the business contemplated, which was the receiving, transporting, and delivery of letters and other mail matter, for the convenience and benefit of the people, who might send or receive such letters or mail matter. This was the single and the only object of the grant of power, as indicated by the use made then and previously of postoffices and post roads. The words post roads were used to authorize the establishing of the routes between the postoffices, upon which the mail was to be transported. The word roads would convey the idea that the routes should be by the land, as doubtless was the practice previously. When afterwards steamboats plied between points in the country in which postofiices were established, it required a liberal interpretation of the word roads to establish a route as a post road on the water of streams and bays, navigated by steamboats or other craft. Suppose it should be convenient and beneficial to citizens of New York to send a few letters to Rio Janeiro, a port in South America. Congress would have to indulge in a most extravagant implication of power, in establishing a “post road” in the ship’s track in the Atlantic ocean, from a postoffice established in the city of New York to a postoffice, or some sort of substitute for it, in the city of Rio Janeiro. And suppose a ship line should be employed to carry the mail on that route, by giving in money a large bounty annually, amounting to hundreds of thousands of dollars, entirely disproportioned (as $500 or perhaps five thousand dollars to $1) to the value of the service rendered in carrying a few letters in the mail from one place to the other. The objects of the bounty are to pay for carrying the mail (which is comparatively a small consideration in the giving of it), and also an increase and promotion of the trade between the two parts, that being the leading abject in giving the bounty. It would enable the ship line to force an increase of the trade by low freights, that would not of themselves be an adequate compensation for the voyage—the deficiency in which would be supplemented with the profit by the bounty money that it would get from the coffers of the government, raised by taxing the people. This is not “regulating commerce with foreign nations,” but it is making trade at the government’s expense to benefit the merchants of New York in their private pecuniary interests.

Here there are two distinct objects accomplished under the general power “To establish postoffices and post roads;” the one direct—to carry the mails, and the other indirect (badly disguised by being not named in the contract)—to increase foreign trade. The increase of foreign trade is not mentioned as an object in any of the powers; granted to Congress in the Constitution, nor can it be made one, by the broadest implication, and the most liberal construction, that can be indulged, in regard to any provision of the Constitution, when properly understood. The laws passed and so shaped with the design to increase foreign trade are therefore an unwarranted perversion of the powers granted to Congress to establish postoffices and post roads. A similar perversion of this power is plainly exhibited, by making postoffices broker establishments, to transmit money from one person to another in different localities, for compensation given to the government for service performed, the same as is given to banks for similar service.

Let us examine the Constitution to see if you can find any provision in it that gives to Congress the power “To encourage the manufacture of iron in the United States.” Upon the most exhaustive search, we will fail to find it by any sort of inferential construction. We do find, however, in part of the Sec. 8, Art. I, the power “To lay and collect taxes, duties, imposts and excises to pay the debts of the United States,” etc. To carry this general power into execution the auxiliary clause (18 of same Art. and Sec.) must be called into requisition; which gives Congress the additional power to pass such laws as shall be necessary and proper for carrying into execution the foregoing general power; in order of course to accomplish the object for which the general power is given, which is to pay the debts. Proceeding then to execute this general power, Congress passes a law for laying and collecting a duty (commonly called a tariff), of forty per cent, upon all iron imported from foreign countries into the United

States, to be paid into the custom house for the use of the United States, with which to pay its debts. That brings in a certain amount for that purpose—say one million of dollars. But statesmen know, and it is supposed, most of them would admit, that if a duty of twenty per cent, instead of forty, were laid it would have brought in double the amount of money, with which to pay the debts—say two millions of dollars. If the object was to exercise the power in the manner necessary and proper to pay the debts, why was not the duty put at twenty per cent? The answer is, that Congress purposely so exercised the auxiliary power as to embrace in their legislative action in effect another power and object, not found in the Constitution, which was the one, in vain searched for awhile ago, “To encourage the manufacture of iron in the United States,” and by which they give a bounty to the manufacturers of iron in this country from three to five millions of dollars for every million of dollars collected to pay the debts under the duty of forty per cent. That amount, of from three to five millions of dollars, was paid to the home manufacturers by our own people, who bought the iron.

If the duty had been only twenty per cent, our purchases would have paid proportionately less for the iron bought by them, and the government would have paid twice the amount towards its debts.

It is hardly necessary to further point out that here there has been two objects accomplished under pretense of executing one power, one of which was to promote the private pecuniary interests of a particular class of persons, which as an object, either expressed or implied, is not to be found in the power granted (Art. I, sec. 8, clause I), nor in any other place in the Constitution.

Another mode of enlarging the powers granted to Congress may be noticed. One of the clauses gives Congress the power: “10. To define and punish Piracies and Felonies, committed on the Seas, and Offences against the Law of Nations.”

Piracy has been defined to be “robbery or forcible depredation on the high seas, without lawful authority and done niamo furandi, and in the spirit and intention of universal hostility.” Those who framed the Constitution doubtless well understood what piracy was, and that it was an offense equally against, and punishable by all civilized nations, as being against the law of nations. Several statutes were passed by Congress at an early day on the subject, and one in 1820 provided in substance, that if any citizen of the United States, being of the crew of any foreign vessel, engaged in the slave trade, or any person whatever being of the crew of any vessel armed in whole or in part, or navigated for or in behalf of any citizen of the United States, which was engaged in the slave trade, should be adjudged a pirate, and on conviction, should suffer death. This might well have been made a felony with the same punishment, but it could not be made piracy, according to the universal understanding of the ingredients of that offense at the time the Constitution was adopted. The objection to the statute is, not that the offense created by it was of less degree in turpitude, but that the law was not responsive, and correspondent to the grant of power to Congress to define and punish piracies, which in a limited government, guided in its action by the terms of a written Constitution, is a matter of first importance. Such a departure, under the laudable impulse to deter persons from the commission of what has become to be regarded as a heinous offense against the rights of mankind, makes a precedent, that, under similar impulses on other subjects, may be followed by another and another, until the guides for legislative action may become too little heeded in legislation.

Another mode of obscuring the distinctive organic rules of action may be in blending in laws upon the subject matters peculiarly pertaining to the different departments of the government; which may be illustrated by the law creating the tribunal styled “The Court of Claims,” under the clause which gives Congress the power: “9. To constitute Tribunals inferior to the Supreme Court.”

Without attempting to make a complete detailed statement of the various subjects embraced in the jurisdiction of that tribunal called a court, it will suffice to say, that it exercises jurisdiction in certain suits, brought by persons asserting claims against the United States, founded on certain laws of Congress, or on contracts express or implied with the government, claims of persons referred to it by Congress, in which legislative relief is sought; and claims referred to it by the heads of the Executive Departments, involving disputed facts, or controverted questions of law, dependent upon the amount in controversy, or the importance of the questions at issue.

An appeal to the Supreme Court of the United States is allowed on behalf of the United States, when the adjudication is adverse to it, and on behalf of the applicant or plaintiff, where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of the court. The right to sue in this court is not dependent upon citizenship of the parties, or subject matter of the proceeding as it is prescribed by the Constitution for the federal courts generally. It is therefore a tribunal sui generis. The cases, in which the United States permits suits to be brought by persons against it, are pertinent to the judicial department of the government. The cases referred to it by Congress are pertinent to the legislative department, the adjudication of which by the court must be designed to relieve the committees from the labor and drudgery of investigating and deciding upon the merits of the claims presented for legislative relief, and the adjudications cannot be conclusively binding upon Congress, any more than the well a considered report of the committee; otherwise than upon the supposition, that it can and will submit its judgment of the merits of a claim to the judgment of persons, who are not members of Congress, and have no constitutional right to participate in their duties of legislation imposed on them by the Constitution. The cases referred to that court by the heads of the executive department of the government, it is the constitutional duty of its officers to investigate and decide according to their own judgment of the merits of the claims unless indeed it is competent for Congress, the legislative department, to provide a tribunal in the judicial department to conclusively determine for and direct the executive officers how they shall perform their sworn duties, in matters pertaining peculiarly to the executive department of the government.

Upon certain contingencies also, the wisdom of the Supreme Court of the United States, the head of the judiciary, may be appealed for the correction of any error, that may be committed by the decision of this court upon such matters pertaining to the legislative and executive departments, as well as those pertaining to the judicial department.

The government of the United States was divided into three distinct and separate departments, so that the independent action of each one of them upon the subjects assigned to each, within the scope of its constitutional authority, would operate as a check upon the other departments, in any violation of, or excess of power assumed, under the Constitution by either one. This can be done only by such action on the part of each one as will maintain and strictly preserve the distinctive identity, as one separate part in the system of government. It was founded also upon the assumption, by those who devised and adopted it, that the offices in each department would be filled by persons competent to investigate and determine whatever of law or fact, however abstruse, diffuse, and complicated, that might be involved in the performance of their official duties, without any official advice, direction or compulsion, from the officers of the other departments, without shirking from responsibility by the creation of boards, courts, or commissions, instituted for the purpose; specimens of which we have of late years had instances, notably the returning boards and also commission, partly composed of justices of the Supreme Court, known vulgarly “as the commission of eight to seven,” to which was assigned the duty by Congress to investigate and determine for it, the question then presented to Congress to decide under the Constitution and laws, as to who had been elected President of the United States.

This habitual practice of the courts in the States of issuing the writs of mandamus and of injunction to judicially dictate to the heads of the executive department what they shall and shall hot do in the performance of their appropriate duties as executive officers, is on a par with the other things resorted to.

Such means adopted to aid or direct the persons, elected or appointed to fill the offices of the legislative or executive departments, by persons in the judicial department, or in boards, courts and commissions, not provided for in the Constitution, is a glaring recognition of the failure of the safe equipoise of the government, moved along within its limited and bounded sphere of constitutional action by co-operative action of the three departments, legislative, executive and judicial; or if not that, it is indubitable evidence that those who have administered those departments have been unmindful, or have not duly appreciated the action in each one, necessary to preserve distinctively their separate independence, and complete co-ordinateness, as was designed by the framers of the Constitution, and which was the boast of its admirers, as the great American improvement in the science of government. Speaking of departments, reminds me not to omit to refer to the agricultural department, which we may expect to be established in the regular course of events, judging from the progress agriculture has made gradually with increasing favor during forty years, being engrafted upon the government, as one of its objects, to which its power of collecting and expending money has been applied. Its history is interestingly curious. Congress was given power (8.) “To promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.” The manner in which the progress of science and the useful arts was to be promoted is so specifically set out in this clause, that it would seem to be difficult to imagine beforehand how it could be made subserve the purpose of promoting agriculture also. A law was passed in pursuance to it providing for whatever was necessary and proper for carrying into execution the power granted, by having applications for discoveries examined and passed upon, patent rights granted, and publications made in book form, and distributed, exhibiting the models, and giving descriptions of the inventions that were patented. After a while it was noticeable that those books called “patent office reports” contained letters from farmers, planters and gardeners, and occasionally scientific disquisitions about raising crops and agriculture generally, and in the course of time entire books, marked on the back “Agriculture,” were distributed by members of Congress to the people, their constituents. Seeds of grains, of the field and garden vegetables, of cotton, of flowers, of bulbs, of plants, of vines, of shrubs and of trees, both rare and common, were gathered up by the patent officers from the four quarters of the world, and sent through the postoffices free of charge to the people of the United States. The business became so extensive and important by its gradual growth, that it could no longer be sheltered under the wing of patent office, and it was made a separate bureau, “The Bureau of Agriculture.” The business is still growing in proportions and favor, and if it is an object to which the powers of the government should be devoted in promoting the private pecuniary interest of the people its relative importance compared to other industrial products, would seem to require that it should be elevated into a separate department, with a secretary of agriculture; and, as that is yet by far the greatest industrial interest in the country, and as it is the substratum foundation of all the varied material developments from which wealth and civilization emanate, he should occupy the position of Premier in the cabinet of the President. Nothing further need be said on this subject than that the word agriculture is not contained in the Constitution of the United States.

Enough has been said to render it obvious that some other provisions, besides those that have been discussed, must be found in the Constitution, whose construction by the many good, conscientious, intelligent and patriotic citizens, who have participated in the administration of the government, could possibly justify the exercise of the powers granted, so as to produce the various results that have been adverted to. There must be provisions, that have been understood to vest in the government a competency in carrying on its administration, and in promoting the general and special interests of the people, as fully in every respect as an absolute sovereignty could, save and except only, so far as it is limited and restricted in its objects, and powers of governmental action, by the express restrictions and limitations of the Constitution. It is to be presumed, that such provisions are to be found in the preamble to the Constitution, and in the taxation clause, in both of which the expression, “the general welfare,” is used. The taxation clause reads as follows: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”

It has been before stated, that for every object, intended to be accomplished by the government of the United States, as a limited government, there was expressed in the Constitution a delegation of power to be used in the accomplishment of such object, and no other object indirectly by the use of it.

The meaning, therefore, of this clause was and is, that Congress shall have power to raise money to be expended in providing for the “general welfare” of the United States as a government, by carrying into execution all of the powers granted to Congress, and all other powers vested by the Constitution in the government of the United States, or in any department or officers thereof.

Or in other words, the “general welfare” of the United States was to be attained as an object, which should result by the exercise of the taxation power in the collection and expenditure of money, in the execution of the powers, and those only which have been delegated to the government as specified in the Constitution. That this is the correct meaning of that expression is abundantly evidenced by the meaning attached to it, when the Constitution was adopted, and when previously it was used in the articles of Confederation, and when it was used by the Congress, held from the commencement to the end of the struggle of the colonies with the mother country.

To effect the various objects by the government, which have been adverted to, it must have been understood to mean, that Congress could raise and expend money for any and all objects and purposes whatever, that it should deem to be promotive of the general welfare of the people of the United States, unless there was to be found some clause of prohibition in the Constitution. Or in other words, the general welfare of the United States was understood to be tantamount to the general material and social prosperity of the people of the whole country, in all of their industrial pursuits, and that Congress could constitutionally exercise the powers granted to it in such a manner as to directly and indirectly accomplish those general objects. For instance, laws could be so passed in laying duties on importations as to indirectly give substantial aid and protection to persons engaged in home manufactures of various sons, and thereby also give employment and adequate remuneration to labor, and by the same sort of indirection the general trade of the country could be extended and enlarged by laws passed to carry the mails by water to distant foreign countries, and as the promotion of agriculture would tend to produce those general results, by enlarging the production of the country, money could be expended to furnish the people, who followed that business, with information, and other more substantial aids, in protecting their employment of labor and capital in it.

That this could not have been the meaning of the term “general welfare,” as it was understood by those who framed and adopted the Constitution, will be made evident by ascertaining its frequent use previously in the struggle with England, and its well established meaning, when then used, and by a proper construction of the taxation clause in which it is found, guided by the light of the circumstances, and purpose attending its use previously; and by reference to other clauses in the Constitution, which raise a violent presumption against any construction that such a meaning could reasonably have been attached to it, when used in the Constitution.

In the Congress of 1774, at Philadelphia, the delegates were commissioned, by each of the colonies there and then represented, by a written authority given to each of them, “to meet and consult together for the common welfare.” The common welfare then consisted in seeking by argument and remonstrance, jointly made, to procure from England the recognition of the political right of each colony to tax itself, and to induce England to desist from claiming and exercising the right of taxing the colonies for the general revenue of the kingdom. The term “common welfare,” related to the political rights of each of the colonies, as a local government, and to nothing else, for there was then nothing else in issue.

The Congress that met in May, 1775, were given by the colonies respectively additional authority to concert, agree upon, order and prosecute measures for the same purpose. This increase of authority was made necessary by the fact that hostilities had commenced near Boston.

Such was generally the tenor of the instructions of each of their delegates, until the adoption of the Articles of Confederation, on 1st of March, 1781, and during all that time the Congress was a mere agency, acting first for the colonies, and then for the independent sovereign States, into which the colonies had been converted. Whatever Congress did, had reference to the public defense, and to the general welfare of the associated local governments in respect to their political status, and not in reference to their internal government, or to promote the private pecuniary interest of their people. And the same may be said in regard to the federation of the States, formed by the Articles of Confederation, a draft of which was completed and submitted to the States the 15th of November, 1777, and adopted and put in operation March 1, 1781. The States did not, by those articles, confer upon the Congress a single power authorizing it to do anything to promote the private pecuniary interest of any person, or to encourage any private pursuit or business. The Articles of Confederation read as follows:

“Art. 3. The said States hereby enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, and bind themselves to assist each other against all force offered, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever.”

Here the words “general welfare” were used to express the condition that the States would be in, if their joint power should succeed in preserving their political independence and power of self-government, for which they were then struggling.

“Art. 8. All charges of war, and all other expenses that shall be incurred for the common defense and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State,” etc.

By the exercise of what powers could the general welfare of the Confederation be accomplished? The answer is, by such powers as had been delegated to it, for it could rightfully exercise none others. What objects could be accomplished by the federation as a means of securing and maintaining the general welfare? The answer is, that as the Articles of Confederation expressly indicate the objects within its jurisdiction, it could apply the powers alone which were delegated to it, to accomplish such objects, and none others. And as the promotion of the private pecuniary interests of individuals, or classes of individuals, were not indicated as objects to be promoted by it to secure the general welfare, it had no powers given to it to be applied to accomplish such objects, and therefore it never, while it existed as a government, attempted to accomplish such objects by its action.

This history of the frequent use of the term “general welfare,” exhibits two important considerations in relation to it, to-wit:

First, that it had a fixed and definite meaning, as expressive of the good condition, the successful operation, the general welfare of the government, the political safety and well-being of the States united, first under the Continental Congress, and afterwards under the Confederation.

Second, that the general welfare that was attainable at all, had to be attained by the exercise of such powers, and only by such powers, as were delegated to the Continental Congress first, and then afterwards to the federation.

It has been held in our highest courts, that a word, or an expression, that has been used in a constitution, in a statute, in a deed, or in a written instrument of any kind, must be held, when afterwards interpreted, to mean exactly what it meant at the time it was so used. It is important to notice the fact that in 1787, when the delegates were engaged in framing the Constitution, they were then living under the Confederation, and had been appointed with the express authority, by their respective States, to amend and reform the Articles of Confederation, so as to form a more efficient government. They must, therefore, have had a perfect knowledge of the meaning of “the general welfare,” as used in the Articles of Confederation, and also of the powers intended to be exercised and that had been exercised since March, 1781, by the Confederation, to attain to the condition of “general welfare” as an object. The fact that they used the term “general welfare” in the Constitution, that they then formed, in the same connection, that it had been used in the Articles of Confederation raises a violent presumption, that they designed it to have the same meaning, and to be attained in the same way. That connection was in the preamble and taxation clause of the Constitution, just as it had been used in the Articles of the Confederation, in the clause stating the objects of the Confederation, and in the taxation clause. It is an established rule of construction in courts, that where a word or expression has been used in a constitution, or statute, which has had its meaning defined by judicial interpretation, or by contemporaneous and continued action upon it, it will be presumed to have the same meaning, when it is afterwards used in the same connection, in the formation of a constitution, or in the enactment of a law upon the same subject, or in the enactment of the same law, changed only in other provisions. The fact that the Constitution provided for a government with more and greater powers for the same States in the Union, was no reason why the words “general welfare” did not have the then usual and well-established meaning, that it had in the Articles of Confederation, especially as the Constitution provided for a limited government, with its powers and objects especially enumerated, just as it was done in creating the Confederation. There is an unanswerable objection to the position, that the “general welfare” of the United States included in its meaning the well-being of the people, in their private pecuniary interests, as well as the well-being of the government of the United States, in the administration of it by its departments and officers.

For the laying and collecting of taxes of some kind, and the disbursement of the money collected by the laws of Congress, embrace nearly everything that the government can do, either under its delegated or under its assumed powers. There are, indeed, very few objects of any kind, that the government has ever accomplished, that did not require for its accomplishment, the laying and collecting of taxes of some kind, in some manner, or the expenditure of money collected. It would have been useless, therefore, to have conferred upon Congress any other power than that in the taxation clause, “to lay and collect taxes, imposts, duties, and excises, to pay the debts, and to provide for the common defense and general welfare of the United States.”

And a part of this clause might have been omitted, for it would have been providing for the general welfare “to pay the debts,” and also “to provide for the common defense.”

It would have been for the general welfare of the United States to collect and expend money to establish a navy, and to raise an army, when needed, to establish post roads and postoffices, to establish federal courts, to coin money, and to execute every other power expressly or impliedly delegated to Congress or to any other department or officer.

The Congress might also deem it to be for the general welfare to collect and expend money to encourage agriculture, sheep raising for wool, the distribution and breeding of fish for food, the healing of diseased domestic animals, the establishment of agricultural and mechanical schools, and experimental stations, an educational bureau, and an agricultural department; to increase commerce by subsidizing ship lines, to send vessels in search of the north pole, and numerous other such objects, stated in the first part of this lecture, not provided for in the Constitution, otherwise than by their being considered to be for the general welfare, to aid in the establishment of factories in the country, which could be effectually done by an indirection, as may be seen by an examination of the law creating a tariff for their protection. By the same sort of indirection, national banks are given a monopoly in the banking business, by taxing State banks out of existence.

This limited and imperfect reference to what Congress has done suggests the query, what is it that Congress cannot do to provide for the general welfare of the United States?

Republicanism, a hundred years ago, was understood to be the control of the whole body of the people in a country, by their participation in the public affairs, relating to their government.

Democratic representative republics were then formed in America upon the theory, that by giving each man an equal voice in the enacting and execution of the laws, by which he would be governed, he would thereby be able to secure to himself equal rights, and to protect himself from unequal burdens, by the action of the government.

One hundred years experience has so far most signally failed to verify the correctness of that theory. It has been found, that the written Constitutions of a republic may be so construed, as to make the government administered under it an instrument for distributing benefits to the few favored persons, and for imposing unequal and depressing burdens upon the great body of the people, the same as it may be done, and most usually has been done, by tyrannical monarchies.

About Oran Milo Roberts

Oran Milo Roberts (1815-1898) was born in South Carolina and was graduated from the University of Alabama in 1836. He worked as a lawyer and served in the Alabama legislature. He moved to Texas were he served as district attorney, law professor and eventually on the Texas Supreme Court. He supported secession and was elected president of the Texas Secession Convention. He served as a colonel in the Confederate army and was then appointed Chief Justice of the Texas Supreme Court. After the war, he was appointed to the United States Senate but was refused a seat during Reconstruction. He then opened a law school and was later appointed to the Texas Supreme Court and then twice elected Governor of Texas. He helped found the University of Texas and later served as a professor of law at that institution. More from Oran Milo Roberts

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