Guest Essayist: Gordon Lloyd

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How did three critical clauses of Article I, Section 8 of the Constitution come into being?  The clauses read: “The Congress shall have the power 1) to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for 2) the common defense and 3) general welfare of the United States.”

The general welfare and common defense clauses made their first appearance in Article III of the Articles of Confederation of 1781. Thus these two clauses have been linked together from the very beginning of the country as part of the undisputed and expressly stated role of the federal government.  They also made their way into the Preamble of the Constitution of 1787.

The union under the Articles of Confederation LIMITED THE REACH OF THE FEDERAL GOVERNMENT to the powers “expressly delegated to the United States.” (Article II.)  The “alliance” between the “sovereign states” was on behalf of their “common defense, the securities of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of the them….” (Article III.)  One power not expressly stated in the Articles was the power to lay and collect taxes.

A major problem under the Articles was agreeing on a formula for raising revenue to fund the limited objectives of the union.  Since Congress did not have the power to lay and collect taxes, requisitions to each of the states had to be filed. Accordingly, one reason for the Constitutional Convention in Philadelphia in 1787 was to secure a reliable source of revenue for the federal government.

The Virginia Plan, introduced by Edmund Randolph and James Madison on May 29, 1787, at the Constitutional Convention, contains 15 Resolutions to “correct and enlarge” the Articles of Confederation.  The first Resolution reminds us that the problem, as far as the Virginia delegates were concerned, lay with the limited powers and not so much the objectives of the Articles.  The goals of the Articles are reaffirmed by the first Resolution: “common defense, security of liberty and general welfare.”  And to secure these ends, the Virginia Plan recommended a radical alteration of the structure and powers of the federal government.  True, nothing was explicitly stated in the Virginia Plan about the power of taxation, but this power was added once the delegates got down to working out the details.

The Framers went through the first draft of the Constitution presented by the Committee on Detail on August 6.  There is a specific reference to the power of Congress to lay and collect taxes.  Congress was also given the power in this first draft “to lay and collect taxes, duties, imposts and excises” thus providing a constitutional source of revenue for the new government.  Congress was also given power on behalf of the general welfare clause, and the common defense.

As it emerged from the Committee on Detail, these three powers of Congress had the potentiality to be very broad reaching indeed.  Particularly unsettling was the unfamiliar power to lay and collect taxes clause designed to cover the “necessary expenses of the United States.” On August 25, Roger Sherman moved that taxes be limited to ” defraying the expenses that shall be incurred for the common defense and general welfare.”  So, according to Sherman, the “necessary expenses of the United States” are those expenses that are incurred on behalf of the common defense and general welfare. The delegates initially dismissed Sherman’s proposal as so obvious it was “unnecessary.”

But Sherman persisted. He was concerned that if the Constitution did not explicitly restrain elected officials by specific limitations on the taxing power, then they will use the taxation power to extend the reach of federal government. On September 4, the delegates agreed with Sherman that “The Legislature 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 was unanimously agreed to.  Thus, Sherman got his way in LIMITING the power to lay and collect taxes to items that fell under the common defense and general welfare clauses.

So we can mark September 4 as the date securing the specific linkage between the lay and collect tax clause, the common defense clause, and the general welfare clause.  On September 12 Report the Committee of Style substituted “Congress” for the “Legislature.”

A related question is how did the common defense clause and the general welfare clause make their way into the Preamble of the United States?  We have seen how the Articles of Confederation had a Preamble in which the purposes of the union were “common defense, the securities of their liberties, and their mutual and general welfare.”  The Constitutional Convention followed this precedent.

All through the ratifying debates, opponents of the Constitution, such as Brutus, wondered whether the taxation, common defense and general welfare clauses, instead of being restrictions on the reach of the taxing power of the federal government, as intended, were actually potential invitations for the expansion of the powers of the federal government. What activities of the federal government, said Brutus, could not be included under the taxation, common defense, and general welfare clauses?  The answer, said the authors of the Constitution, was that the power to tax must be clearly associated with items that manifestly concern the common defense and the general welfare.

Professor of Public Policy at Pepperdine University, Dr. Gordon Lloyd is the coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal. His latest coauthored book is The Two Narratives of Political Economy. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.

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Amendment XVIII:

Section 1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section One of the 18th Amendment contains only forty-four words.  These few words are intended, however, to introduce a remarkable and clear change in the relationship between the federal government and the individual American citizen.  In popular terminology, this section prohibited, and criminalized, what was formerly a matter of taste or culture, namely, the purchase and consumption of alcoholic beverages.  But, as we shall see, there is a bit more nuance and ambiguity in this section than what is captured by the common understanding.  Language matters and the thoughts behind the words also matter.  In addition, sometimes, what isn’t said is as important as what is said.

We can collect the words that are indeed said into five separate but related categories. 1) After one year from the ratification of this article 2) the manufacture, sale, or transportation of intoxicating liquors 3) within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof 4) for beverage purposes 5) is hereby prohibited.

This is the first time that an amendment to the Constitution would not take effect immediately upon receiving the requisite votes of 3/4 of the state legislatures, but at a later designated time.   The amendment was ratified on January 16, 1919 and went into effect on January 17, 1920.  Why designate a one-year delay?  The thought was that one-year would give American business, government, and citizens sufficient time to adjust their life style to a new, and so the proponents thought, improved American way of life.

Americans, for most of their history, however, accepted that the Constitution limited the reach of the federal government to few and defined objects leaving the rest of public policy to state and local governments or to the private sector.  The Constitution “enshrined” the rights of the individual and the states over against the federal government in the Bill of Rights, also known as the first ten amendments.

True, the 14th -15th Amendments, passed in light of the civil war, limited, for the first time, what state governments could and could not do.  Specifically, no state could deny the civil rights and voting rights of recently freed African Americans.  And the 13th Amendment also constitutionally limited what Americans could own:  it declared that no American could own another person.

A second feature to Section One of the 18th Amendment, therefore, is that it introduces over 100 years after the Founding amendments, and fifty years from the Civil War amendments, into the very Constitution itself, the proposition that we as individual Americans do not own ourselves with respect to the consumption etc., of certain beverages.  Not having a drink is made the moral equivalent of not owning a slave?

The prohibition of alcohol was not a phenomenon at either the Founding or the Civil War.  The case for federal, and then constitutional, prohibition grew out of the success of the Temperance Movement. Their appeal to end the evil of drink spread across the various states in the late nineteenth century and into national politics in the early twentieth century.  Overwhelming majorities of both political parties in Congress endorsed National Prohibition in 1917.  Thus, surprisingly, a formerly politically decentralized and alcohol drinking nation overwhelmingly accepted the Temperance argument that drinking was a moral issue, rather than a matter of personal taste, and that it ought to be constitutionally prohibited.

The fascinating interrelationship between the 16th, 17th, 18th, and 19th Amendments—the so-called Progressive Amendments—is beyond the scope of this essay.  But we do need to ask:  What is Progressive about Prohibition? Both movements see the “cleaning up” of the American political system, with its “smoked filled rooms,” on the one hand, and reforming public conduct and getting rid of saloons on the other hand, as twin forces in the transformation of America into a better nation.

But, once again, language is important.  The clear and purposeful prohibition language covering the importation, exportation, and domestic “manufacture, sale, or transportation” shows the moral side of America.  But what is not said in this “mission statement” shows the endurance of entrepreneurial politics in American life.  This is the third feature that is important in Section One.

Despite the common interpretation, Section One does NOT prohibit “the purchase and consumption of alcoholic beverages.” The words, “purchase,” “consumption,” and “alcohol,” are not mentioned.  What is found there instead is the phrase “intoxicating liquors.”  This leaves open to future Congressional debate, and political exemptions, what is “intoxicating” and what are “liquors?”   What about “sacramental wine,” and “medicinal alcohol?”  Shall they be exempt?  After all, the prohibition is “for beverage purposes.”  Nor is anything said about eating purposes.  This ambiguous language is not accidental; it reflects the persistence of entrepreneurial politics in America.

Professor of Public Policy at Pepperdine University, Dr. Lloyd is the coauthor of three books on the American founding and sole author of a book on the political economy of the New Deal. His latest coauthored book is The Two Narratives of Political Economy. He currently serves on the National Advisory Council for the Walter and Leonore Annenberg Presidential Learning Center through the Ronald Reagan Presidential Foundation.