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enumerated powers, there is not one opinion dealing with this immensely sifinificant expression. In United States v. Realty Co. (163 U. S. 427), the court said:

Under the provisions of the Constitution (Art. I, sec. 8) Congress has power to lay and collect taxes, etc., to pay the debts ” of the United States. Having power to raise money for that purpose, it of course follows that it has power, when the money is raised, to appropriate it to the same object.

Again, in Juilliard v. Greenman (110 U. S. 421), the court said:

That clause of the Constitution which declares that 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," either embodies a grant of power to pay the debts of the United States or presupposes and assumes that power as inherent in the United States as a sovereign Government.

These were cases in which the action of Congress was upheld. It is passing strange that, in the cases where acts of Congress are held void as not being within the enumerated powers, not once is any reason given why the same clause can not be construed as a grant of power to provide for the general welfare or a presumption that the powers following must in their sum total equal such a grant. There are innumerable examples of dicta declaring this a government of limited powers. These did not ripen into an actual annulment of an act of Congress, based upon the lack of an enumerated power, until after the Civil War. But neither in dictum nor in decision is there a reason, giving consideration to this clause, why the enumeration excludes the particular exercise of power. I challenge the courts, the Congress, and the public to apply to this clause the ordinary rules of statutory construction, as they are applied to other clauses of the Constitution, to statutes, and to the common legal instruments of the people.


The cardinal rule is that the intent of the lawmaker is to be found in the language he has used. (United States v. Goldenberg, 168 U. S. 95; Standard Brewery Co. v. U. S., 251 U. S. 156.) “ There is no ground for construction where apt_language is found.” (Thornley v. United States, 113 U. S. 310; Hamilton v. Rathbone, 175 U. S. 414; Treat v. White, 181 U. S. 264.) “An erroneous practice, however long continued, can not change this rule.” (United States v. Graham, 110 U. S. 219; Houghton v. Payne, 194 U. S. 88.)

On its face this clause plainly declares that “ Congress shall have power to provide for the general welfare of the United States." İmmediately the work of the convention was done, friends and foes of the Constitution recognized this as an apparent delegation of power. Madison, in the Federalist (No. 39), undertook to show the adversaries of the plan that this clause did not mean what it says. He never was satisfied with his own argument, for he privately admits (5 D. H. C. 337), that the clause " expressly” conveys the general power, that it is "unguarded against the construction that has been contended for," that it is “not required for any harmless meaning," and that it is a “fund of power inexhaustible and wholly

subversive of the equilibrium between the general and State governments,” and “ always within reach of the former ”; and he urges that it be “expunged or made“ harmless" by amendment. It was never touched by amendment, the tenth amendment not purporting to take away any powers actually delegated, and leaving the question as to what powers are delegated" to depend upon a fair construction of the whole instrument." (Ch. J. Marshall, McCulloch v. Marylanı, 4 Wheat. 316.)


“ The whole law is to be taken together" in construing it. (Postmaster General v. Early, 12 Wheat. 136.) In drawing a line between State and Federal power, said the convention, transmitting the Constitution to Congress, “ we kept steadily in view, that which appears to us as the greatest interest of every true American, the consolidation of our Union.” If we follow the principles which guided the framers, we will then resolve our doubts in favor of that consolidation“ in which is involved our prosperity, felicity, safety, perhaps our national existence.”

James Wilson, who helped draft the Constitution, told the Pennsylvania convention:

Whatever object of Government is confined in its operation and effect within the bounds of a particular State should be considered as belonging to the government of that State; whatever object of government extends in its operation or effect beyond the bounds of a particular State should be considered as belonging to the Government of the United States.

In forming this system it was proper to give minute attention to the interests of all the parts; but there was a duty of still higher import

to feel and to show a predominating regard to the superior interests of the whole.

The same principle that was so necessary in forming it is equally necessary in our deliberations whether we should reject or ratify it.

The same principle is equally necessary in construing it and was applied by the most renowned American judge:

The genius and character of the whole Government seems to be that its action is to be applied to all the external concerns of the Nation and to those internal concerns which affect all the States generally. (McCulloch v. Maryland, 4 Wheat. 316.)

Would it be surprising then to find that the instrument literally gives the legislative power to provide for the general concerns of the people of the United States?


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In the preamble the meaning literally expressed in the generalwelfare clause is set up among the primary objects of the Constitution. It is a general rule that the preamble may be resorted to to aid in construction, when any ambiguity exists. (White v. U. S., 191 U. S. 545; Knowlton v. Moore, 178 U. S. 41; Jones v. Walker, 2 Paine’s C. C., 705, by Chief Justice John Jay.) This is such a case as the courts have in mind when they look to the preamble to ascertain the content of the language of the grant.


The court asserts that the United States possesses the war powers as recognized in every civilized country (Selective draft cases, 245 U. S. 366); and the judicial power as possessed by other nations. (Osborn v. Bank of U. S., 9 Wheat. 738). Every well-organized government has political power to provide for the general welfare of its own people.

It would be quite anomalous to find that a government by the people is less equipped with power to provide for their own welfare than would be an oligarchy or autocracy. “We in many instances took the constitution of Britain, then in its purity, for a model," wrote one of the framers. The Parliament of England knew no limitation. (Haines, Judicial Supremacy, p. 32; Masterman, How England is Governed.) Bonar Law, most conservative English premier, boasted that the ease with which the English people control their Government makes the English constitution superior to any in the world. Did the framers suppose the people of the United States were less to be trusted with the power of self-government than the people of England?


“ While weighing arguments drawn from the nature of governments and from the general spirit of an instrument,” said Marshall, it is proper to consider “ that the judicial power of every well-constituted government must be coextensive with the legislative, and must be capable of deciding every judicial question which grows out of the Constitution.” (Cohen v. Virginia, 6 Wheat., 264.) Similarly (an argument finding express authority in clause '18, sec. 8, art. i, and in sec. 5 of the fourteenth amendment), it must be held that the legislative power must extend to authority to announce the rule of law (not ex post facto) by which every judicial case is to be decided.

It follows that the interstate common law set up by the court (Kansas v. Colorado, 206 U. S. 46) and the judicial legislation built upon the fourteenth amendment are subject to modification or new creation by Congress.


Except as it has grown up by usage and decision since the Constitution was adopted, there is no distinction between “police powers and the powers of Congress which can be directed to the internal concerns of the country. (6 R. C. L. 183; 12 C. J. 904–934; Ex p. Tindall 229 Pac. 125.) Out of these particular powers Congress has been able to extend its activities about as fast as desired; and, if so disposed, can always find a way around an adverse decision of the courts. It is allowable to group together any number of them and infer from them all, that the power claimed has been conferred." (Legal Tender Cases, 12 Wall. 457; 110 U. S. 421; Henderson v. Wickham, 92 U. S. 259; U. S. v. Gettysburg E. R. Co., 150 U. S. 668.)

The power to tax can be made to reach every kind of property and every act in respect to it. The power to tax involves the power

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to destroy. (Van Brocklin v. Tennessee, 117 U. S. 151; State bank notes, Veazie Bank v. Fenno, 8 Wall. 533); oleomargarine McCray v. U. S., 195 U. S. 27; and phosphorous matches 37 Stat. 81); and to prohibit importations. The power to spend follows the power to tax. (U. S. v. Realty Co., 163 U. S. 423.) So, Congress induces the States to set up satisfactory laws concernings schools, highways, militia, forestry, maternity, and

what not? (Massachusetts v. Mellon, 262 U. S. 44; 16 American Political Sci. Rev. 443.)

The limits of the commerce power are not yet fixed. The commerce brought under control is that which affects the States generally, whether it moves across State lines or not. (Wm. H. Rankin Co. v. Associated Bill Posters, 260 U. S. 1; United States v. Am. Linseed Oil Co., 262 U.S. 371; Board of Trade v. Olsen, 262 U. S. 1.) This power is frequently used to control some subject which was before a matter of internal State policy: Food and drug act, narcotic act, white slave act, employees' liability act, and various others are excursions into internal policy far better referred to the welfare clause than to the commerce clause.

Under the war powers we see exerted and upheld power to allot commodities, fix prices, define and prohibit intoxicants, fix hours of labor and determine in what employment a citizen shall remain. Congress is judge of the emergency. (Hamilton v. Kentucky Distilleries Co., 251 U. S. 146.)

The treaty power is not limited by any enumeration. (Missouri v. Holland, 252 U. S. 416; Sullivan v. Kidd, 254 U. S. 433.) `A treaty on any subject having been made, Congress can repeal, modify, or enforce it. (Grogan v. Hiram Walker & Sons, 259 U. S. 80; Ward v. Race Horse, 163 U. S. 504.) So the United States is put into the making and enforcement of game laws and can legislate on any subject, if it can servilely gain the formal consent of some nation of really independent power.


Congress can make laws to carry into execution the powers of the judiciary and of the executive and to give effect to the guaranties and immunities of citizenship. (Strander v. West Virginia, 100 U. S. 303; Yick Wo v. Hopkins, 118 U. S. 356; Ableman v. Booth, 21 How. 506, Logan v. U. S., 144 U. S. 263.) Congress makes the maritime law only by virtue of a Federal judicial power to enforce such law. (Re Garnett, 141 U. S. 1; Panama R. Co. v. Johnson, 264 U. S. 375; Southern Pac. Co. v. Jensen, 244 U. S. 205), and must make it as general as the jurisdiction of the courts. But a power to give or take away the jurisdiction of the courts implies a power to give the rule of decision, if jurisdiction is given. Fauntleroy v. Lum, 210 U. S. 230; United States v. Interstate Commerce Commission, 246 U. S. 638; American Banana Co. v. United Fruit Co., 213 U. S. 347; Smith v. Appel, 264 U. S. 285.) The executive can not act without means supplied by Congress, even to enforce the decrees of the courts. The Federal Court of Appeals under the Articles of Confederation had no power because the Congress had no power to sustain its decrees. (C. F. 131 U. S. Appendix XXIX; Virginia v. West Virginia, 246 U. S. 565; Haines, Judicial Supremacy, p. 141.) All courts below the Supreme Court are the creatures of Congress, exercising no jurisdiction save that conferred by Congress and all their proceedings regulated by Congress. Even the appellate jurisdiction of the Supreme Court may be taken away (Re Yerger, 8 Wall. 85; Duplex Co. v. Deering, 254 U. S. 443; Lee V. C. & O. R. Co., 260 U. S. 563); or may be given only if a particular question has been decided in a particular way. *(Bradford Co. v. Clapper, 284 U. S. 221.)

Judges can be removed from particular cases on affidavit of prejudice. Executive officers can be impeached for “crimes and misdemeanors "; judges may be impeached for “ misbehavior," which must mean something different. Nothing, but the difficulty of obtaining a two-thirds vote in the Senate, could stand in the way of an effective decision, that refusal to apply a plain law of Congress constitutes misbehavior.

The House of Lords abdicated its power to overrule the House of Commons, on the mere threat of the Commons to create additional members in the upper house. The membership of the Supreme Court is subject to enlargement at the will of Congress. Political decisions of the court can be dictated by the Congress, if Congress and the people be sufficiently determined. Whether any social or economic condition is general rather than local and whether any legislative problem can be more wisely handled by Congress than by the State legislatures are political questions, over which the courts ought to have no control and over which the makers of the Constitution never intended the courts to have control. If the power given to Congress to control the courts and the express power “to provide for the general welfare” do not prove the political supremacy of Congress over all subjects of legislation, a reference to the history of the Constitution and to the proceedings in convention will afford complete demonstration.


This is not the place to write a history of the period between Yorktown and the convention at Philadelphia. Many writers have covered that epoch. Suffice to say that the bonds set up by the Articles of Confederation were rapidly dissolving and that the State governments were themselves fast becoming impotent. Riots were prevalent in most of the States, and in some amounted to open rebellion. In many parts of the country the courts were unable to function. Washington exerted his wide influence, trying to bring order out of the chaos by setting up a National Government. In 1785 he wrote:

Illiberality, jealousy, and local policy are mixed too much in our public councils, for the good government of the Union. In a word, the Confederation appears to me to be little more than a shadow without the substance; and Congress a nugatory body, their ordinances being little attended to. To me it is a solecism in politics; indeed it is one of the most extraordinary things in nature that we should confederate as a nation, and yet be afraid to give the rulers of the Nation, who are the creatures of our own making, appointed for a limited and short duration, and who are amenable for every action, recallable at any moment, and subject to all the evils which they may be instrumental in producing-sufficient powers to order and direct the affairs of the same. By such a policy as this the wheels of Government are clogged

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