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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1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    History, especially since the dawn of progressive interpretation, indicates Brutus’ concern was well founded. I came to the same conclusion within a few moments after reading “3) general welfare of the United States” in the first paragraph. English being a fluid and imprecise language combined with the individualistic mandate of post-modern secularism can easily be read by many Americans today as “the Federal government is obligated to provide for the individual’s general welfare.

    Thank you for the essay.

    PSD

    Reply

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