taxing for the general welfare, our Founder's meaning
by, November 26th, 2016 at 2:05 pm (1197 Views)
The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.--- numerous citations omitted__ Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19 - - - Par. 92. Intent of framers and adopters as controlling.
So, whenever a question arises as to the meaning of the text of our Constitution, the answer is to be found in the legislative intent as expressed by our Founders during our Constitution's framing and ratification debates.
It is commonly asserted by the uniformed that under Congress' 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", Congress is free to tax and spend for anything it asserts is for the "general welfare". But that assertion is quickly put to rest when documenting the legislative intent of our Constitution as stated by our Founders, during our Constitution’s framing and ratification debates.
In No. 83 Federalist and in explaining the meaning of the Constitution, Hamilton, in crystal clear language, refers to a “specification of particulars” [the 17 items you mention] which he goes on to say “evidently excludes all pretension to a general legislative authority“.
"...the power of Congress...shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended..."
This view expressed by Hamilton in the Federalist Papers during the framing and ratification debates is also in harmony with what Madison states during the framing and ratification debates:
Madison, in No. 41 Federalist, explaining the meaning of the general welfare clause to gain the approval of the proposed constitution, states the following:
"It has been urged and echoed, that the power "to lay and collect taxes...to pay the debts, and provide for the common defense and the 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 [the anti-federalists] for objections, than their stooping to such a misconstruction...But what color can this objection have, when a specification of the object alluded to by these general terms immediately follows, and is not ever separated by a longer pause than a semicolon?...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...But the idea of an enumeration of particulars which neither explain nor qualify the general meaning...is an absurdity."
Likewise, in the Virginia ratification Convention Madison explains the general welfare phrase in the following manner so as to gain ratification of the constitution: "the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction."[3 Elliots 95]
Also see Nicholas, 3 Elliot 443 regarding the general welfare clause, which he pointed out "was united, not to the general power of legislation, but to the particular power of laying and collecting taxes...."
Similarly, George Mason, in the Virginia ratification Convention informs the convention
"The Congress should have power to provide for the general welfare of the Union, I grant. But I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states. Otherwise the power of providing for the general welfare may be perverted to its destruction.". [3 Elliots 442]
For this very reason the Tenth Amendment was quickly ratified to intentionally put to rest any question whatsoever regarding the general welfare clause and thereby cut off the pretext to allow Congress to extended its powers via the wording provide for the “general welfare“.
And so, the question remains: What wording in our federal Constitution grants power to Congress to tax and then spend on public school systems established under state constitutions?
The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it._____HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398 (1934)