have passed altogether unnoticed by the many eyes wch saw danger in terms & phrases employed in some of the most minute & limited of the enumerated powers, must be regarded as a demonstration, that it was taken for granted that the terms were harmless, because explained & limited, as in the “Articles of Confederation”, by the enumerated powers which followed them.
A like demonstration, that these terms were not understood in any sense that could invest Congress with powers not otherwise bestowed by the Constitutional Charter may be found in what passed in the first Session of the first Congress, when the subject of Amendments was taken up, with the conciliatory view of freeing the Constitution from objections which had been made to the extent of its powers, or to the unguarded terms employed in describing them. Not only were the terms “common defence and general welfare”, unnoticed in the long list of amendments brought forward in the outset; but the Journals of Congs. shew that in the progress of the discussions, not a single proposition was made in either branch of the Legislature which referred to the phrase as admitting a constructive enlargement of the granted powers, and requiring an amendment guarding against it. Such a forbearance & silence on such an occasion, and among so many members who belonged to the part of the nation, which called for explanatory & restrictive amendments, and who had been elected as known advocates for them, can not be accounted for without supposing that the terms “common defence & general welfare”, were not at that time deemed susceptible of any such construction as has since been applied to them.
It may be thought perhaps, due to the subject, to advert to a letter of Octr. 5. 1787 to Samuel Adams and another of Ocr. 16 of the same year to the Governor of Virginia, from R.H. Lee, in both which, it is seen that the terms had attracted his notice, and were apprehended by him “to submit to Congress every object of human Legislation”. But it is particularly worthy of Remark, that altho’ a member of the Senate of the U. States, when Amendments to the Constitution were before that House, and sundry additions & alterations were there made to the list sent from the other, no notice was taken of those terms as pregnant with danger. It must be inferred that the opinion formed by the distinguished member at the first view of the Constitution, & before it had been fully discussed, & elucidated, had been changed into a conviction that the terms did not fairly admit the construction he had originally put on them: and therefore needed no explanatory precaution agst. it.…
