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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 "generalwelfare" 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.

Mr. President, what is the use of talking about the generalwelfare clause of the Constitution? The Senator from Montana, with great respect and deference to him, has gone so far as to say that we are authorized to pass this law under the preamble of the Constitution; that Congress can pass laws under the preamble of the Constitution.

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.

Here is what Story says upon that:

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 It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution.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.

I read from Madison in The Federalist:

Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution on the language in which it is defined. It has been urged and echoed that the 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," 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 for objections than their stooping to such a misconstruction.

Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general-welfare expressions just cited, the authors of the objection might have had some color for it.

But what color can the objection have when a specification of the objects alluded to by these general terms immediately follows? 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? Nothing is more natural and common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity which, as we are reduced to the dilemma of charging either on the authors of the objection or on the authors of the Constitution, we must take the liberty of supposing had not its origin with the latter.

Now, let us see what Jefferson said upon the subject:

To lay taxes to provide for the general welfare of the United States, is to lay taxes for the purpose of providing for the general welfare. For the laying of taxes is the power, and the general welfare the purpose, for which the power is to be exercised. The Congress are not to lay taxes ad libitum for any purpose they please; but only to pay the debts or provide for the welfare of the Union. In like manner, they are not to do anything they please to provide for the general welfare, but only to lay taxes for that purpose. To consider the latter phrase not as describing the purpose of the first, but as giving a distinct and independent power to do any act they please which might be for the good of the Union, would render all the preceding and subsequent enumerations of power completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and, as they would be the sole judges of the good or evil, it would also be a power to do whatever evil they pleased.

There is another school of constructionists, liberal constructionists, who claim, as Hamilton did, that the power to lay taxes must be coupled with the power to tax for the general welfare. In other words, that when we come to lay taxes, or when we come to appropriate for the purposes of this bill, while we have not any power to pass the bill, we have the power to tax and appropriate money for the purposes indicated in the bill. It might seem very strange, but a school of interpreters, who stand very high upon constitutional construction, have contended for this point. Story discusses it for 50 pages in his volume on the Constitution, admitting that we have not the power under the general-welfare clause to do anything. Nevertheless, under the taxing clause we have the right to tax and appropriate for the purposes that we have not any power or jurisdiction to accomplish. The ground will be taken in this debate before it closes, I think, from what I have heard when gentlemen arise to place this bill where it must be placed, under some clause of the Constitution, contrary to the contention of the Senator from Montana, that there is no general-welfare clause of the Constitution. They will contend for the proposition that Story contended for, vainly, I think, that while you can not pass a bill in the interest of the general welfare, you can tax for the general welfare.

In other words, the Committee on Finance and the Committee on Appropriations can levy a tax and appropriate money for the purposes of this bill, but we have not any right to pass the bill. Story says it is a dilemma, and that he will extricate himself from the dilemma. With great deference to his profound learning, I do not think he has extricated himself from the dilemma. I read a few lines from what I think the greatest work on constitutional law, written by as great a lawyer as there ever was in the country, to show what he calls the absurdity of that position. I will submit to the Senate what Mr. Tucker says.

Before reading from Tucker I want to say that Hamilton and Madison agree that there is no general-welfare clause, but when they come to the taxing power Hamilton contended you could tax for the general welfare, and Madison contended you could only tax for the general welfare as far as it was governed, and circumscribed by the enumerated and delegated powers of the Constitution. Now, Mr. Tucker says:

It would really seem absurd to impute to the framers of the Constitution a purpose to comprehend objects far beyond the powers it conferred upon the Government.

In other words, Congress can not make and control a railroad; but it may raise and appropriate money for the benefit of a corporation that is to regulate and control it. Such a construction of the Constitution is anomalous. It gives an unlimited power of raising money, to be expended at the discretion of Congress, upon any and all schemes which Congress might deem for the "common defense and general welfare," although such schemes Congress is not empowered to project or to carry into execution by any power delegated to it.

Mr. President, I made up my mind long ago, that when contemplated enactments were under consideration, the first thing I would do, would be to ask myself the question: Does this come under the Constitution of the United States? I care not what the measure may be. I care not what benefit it may confer upon the country. If I am not satisfied in my own mind, giving the Constitution not a narrow, but a fair construction, if I can not find some clause of the Constitution under which the measure comes, then I am bound to vote against it, or I violate my oath as a Senator of the United States.

I place this provision under the only clause of the Constitution that it ought to be placed under. Perhaps other Senators may find other clauses and other provisions, but I have placed it under the only provision that I think it can arrange itself under, and that is under the census, or, rather, the enumeration, Article I, Section 2, subsection 3. If we can not place it under that clause, then I should like some Senator to rise and tell me under what clause it does belong.

I have the same idea about this in my head that I think the Senator from Texas, Mr. BAILEY, has, because I can always tell what he is thinking about from the way he looks. If we were now to pass a census act, the very first census act, I think he and I would agree that enumeration means enumeration, and it does not mean anything else. But I am met with the proposition that it has for a hundred years received an entirely different and more enlarged construction.

I agree with the Senator from Texas that the fact that law after law has been passed that is unconstitutional, affords no justification for passing another law that is unconstitutional. In other words, it is contended, when you want to support an unconstitutional law, all that is necessary to do is to cite some other laws that are unconstitutional in support of the proposition you are contending for.

But, Mr. President, this census act has stood for a hundred years and over. It has been referred to in statute after statute, providing not only for the taking of the census, but referring to facts and statistics that have been gathered by the census. It has been referred to without being interpreted, by the Supreme Court of the United States, over and over again.

Here is the Census Committee, of which my distinguished friend, the Senator from Texas, is the ranking member, that has never brought in a single protest against the work the census is doing. In all these hundred years not one objection has been made to the work the Census Bureau is engaged in, and it is engaged in exactly the same sort of work that this bill contemplates.

I therefore take it, when a statute has stood for a hundred years without objection, when committee after committee of both Houses of Congress have approved of it, when the work has gone on from year to year without protest, when statute after statute has referred to the work that is being done under it, when the Supreme Court in any number of decisions has re

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