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defense and general welfare" the Government of the United States is, in reality, a government of general and unlimited powers, notwithstanding the subsequent enumerations of specific powers; if the latter be the true construction, then the power of taxation only is given by the clause, and it is limited to objects of a national character, to "pay the debts and provide for the common defense and the general welfare."

* The reading, therefore, which will be maintained in these commentaries, is that which makes the latter words a qualification of the former; and this will be best illustrated by supplying the words which are necessarily to be understood in this interpretation. It will then stand thus: "The Congress shall have power to lay and collect taxes, duties, imposts and excises in order to pay the debts and to provide for the common defense and general welfare of the United States;" that is, for the purpose of paying the public debts and providing for the common defense and general welfare of the United States.

I quote in this connection what Story says in reference to the preamble of the Constitution. The preamble reads as follows:

We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

These are the observations of Story:

And here we must guard ourselves against an error which is too often allowed to creep into the discussions upon this subject. The preamble never can be resorted to, to enlarge the powers confided to the General Government or any of its departments. It can not confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, "to provide for the common defense." No one can doubt that this does not enlarge the powers of Congress to pass any measures which they may deem useful for the common defense.

Pomeroy, who belongs to the same school that Story does, uses this apt and unambiguous language in reference to this clause :

Congress has power "to lay and collect taxes, etc., to pay the debts and provide for the common defense and general welfare of the United States." Do these two clauses contain two separate and distinct powers, or is the latter a limitation upon the other? In other words, does the Constitution, by this language, confer upon the legislature a general faculty of taxation, and also another general capacity to pay public debts and provide for the common defense and general welfare; or does it confer a limited power of taxation, by restricting the purposes for which taxes may be laid, and confining them to the payment of debts and provisions for the common defense and general welfare? If the construction should be adopted which regards the second clause as an independent grant of power, it would, in effect, be making our General Government unlimited. Providing for the common defense and general welfare includes everything which any government could possibly do; and a grant of power in these broad terms would be the same as making Congress omnipotent, equal in the extent of its functions to the British Parliament.

I quote now a few lines from John Randolph Tucker, who is one of the leading advocates of the doctrines that I believe in. He says:

To pay the debts can hardly be said to be a political power. To lay and collect taxes is a power, and a proper power, where its object is to pay the debts of the Government; and as these words "to pay the debts," are indissolubly connected with the words "to provide for the common defense," etc., it follows that these latter words must share the fate of the words "to pay the debts," and be taken to declare the object of the preceding power, and not the creation of a distinct power.

I will close these extracts by citing a few words from an opinion of Judge Rogers in the district court for the western district of Missouri, delivered on the 28th day of February, 1898, in the case of the United States v. Boyer. In that case, speaking of Judge Story's views upon the subject, he concludes as follows:

After a most elaborate and historical discussion of the subject, presenting the different views of the different political schools or parties, he concludes that the "general-welfare" clause "contains no grant of power whatsoever, but it is a mere expression of the ends and purposes to be effected by the preceding power of taxation." I content myself with the fact that the former construction has never been sustained by any court, and the reverse has been held so often as not to require citations to support it; while the latter construction rests upon the

theory that the "general-welfare" clause contains no power of itself to enact any legislation, but, on the contrary, the words "and provide for the common defense and general welfare of the United States," according to the most liberal constructionist, is a limitation on the taxing power of the United States, and that only.

No case has been cited tracing the power to enact any statute to the general-welfare clause above quoted, and I do not believe any can be. The learned counsel, in this connection, has cited various acts of Congress of a nature quite similar to the one in question, but no number of statutes or infractions of the Constitution, however numerous, can be permitted to import a power into the Constitution which does not exist, or to furnish a construction not warranted.

In closing these references, I make the assertion that neither in the case of the United States v. The Gettysburg Electric Railway Company, in 169th U. S., 668, referred to by the Senator from Nebraska, nor in any other case decided by the Supreme Court or by any other court, has it ever been held that the general-welfare clause was a grant of power, but, on the contrary, all the cases in which the constitutionality of acts of Congress have been maintained have always been traced to one of the enumerated and delegated powers reposed by the States in the General Government.

I hope, therefore, that we shall hear no more in the Senate about the general-welfare clause constituting a grant of power. It strikes me like a discordant note of music that jars the melody of the Constitution and makes the whole instrument vibrate with inharmonious sounds.

I know the Constitution under the last administration was in a state of collapse. Upon a number of occasions upon this floor I attempted to show how it received blow after blow, until it was almost sent staggering to its grave. The predecessor of our present President, whatever else he may have been, was not a student of the Constitution. He did not care for its restrictions, and did not consider himself bound by its limitations. We have an occupant of that office now who is thoroughly familiar with the landmarks of his power; who, with his

judicial temperament, will not only hold himself in equilibrium, but proposes to hold in proper poise and balance the checks and safeguards of governmental power. Therefore, when he submits a question like this to us, it is worthy of our most serious consideration. The President takes the oath not only to protect and defend, but to preserve the Constitution. Now, by the solemn oath he takes, may he preserve unprofaned in all its parts, and once more call it back to resurrection and to life.

He has never said in the messages that he has submitted to us under what grant of constitutional power he has proposed this important legislation. One thing I feel sure of, and that is that he will never regard the general-welfare clause of the Constitution as an independent grant of power. Such an interpretation as this, although it would suit the heretics who are waging relentless war against the philosophy of our institutions, would convert us into a centralized government of inherent and unlimited functions; would sweep to oblivion the reserved rights of the States; would render the enumerated powers of the Charter absolutely superfluous and unnecessary; would give Congress the right to pass any legislation whatever that, in its arbitrary discretion or from political motives, it may determine upon, and in my opinion, destroying the autonomy of the States and obliterating the inviolable declaration of the Tenth amendment; and would make such a gaping wound in the heart of the Constitution that the blood that gave it life would wither in its veins.

REPLY TO SENATOR BURKETT.

During the long debate in the Sixty-Arst Congress upon the creation of a postal savings bank, the senior Senator from Nebraska ridiculed Mr. Rayner's oldfashioned devotion to the Constitution. On March 4, 1910, the Marylander replied in one of the most brilliant speeches of his career.

I simply rise to present a few obituary remarks upon the Constitution of the United States. It has been my cheerful custom quite a number of times in this Chamber to deliver brief funeral observations upon this lamented friend of ours. The Senator from Texas, Mr. BAILEY, and myself having participated in these obsequies and being among the principal pallbearers upon this joyous occasion, it is proper now, as the Senator from Montana, Mr. CARTER, the chief embalmer and undertaker in charge of the ceremonies, is about to close the casket, that one of us, at least, should make a few tender references to the deceased, as the Senator from Montana permits us to take a last view of its distorted features.

As the senior Senator from Nebraska, Mr. BURKETT, is one of the principal conspirators in this tragedy, and as a short time ago he delivered a biographical sketch of my constitutional infirmities, my remarks, very brief indeed, will be limited principally to the discourse of the senior Senator from Nebraska.

Before doing that, however, I desire to say that I do not agree in any sense of the word with the proposition of the Senator from Utah, Mr. SMOOT, or the proposition of the Senator from New York, Mr. Rooт, that their amendments render this bill a constitutional measure. I do not believe for a moment that you can take an unconstitutional bill, admitted to be so by the Senator from New York, and tack on to it an enumerated power of the Constitution, and

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