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January 23, 1788

March 29, 2021 - 5 minute read


Constitution, Article 1 Section 8

Words matter, and delegates to the Massachusetts ratifying convention took them seriously, asking the full meaning of the words “from time to time” and “except such parts as may require secrecy,” and more. William Symmes, a young attorney from Andover, was alarmed at the “general welfare clause.” Could it “be applied to any expenditure whatever?” he queried.

The meaning of words and the authority they convey became even more important when the convention turned its attention to Article 1 Section 8 containing the powers of Congress. Rufus King had represented Massachusetts at the Constitutional Convention and opened debate by noting that “hitherto we have considered the construction of the general government. We now come to the consideration of the powers with which that government shall be clothed.” Under the Articles of Confederation, he continued, “the language of the Confederation is ‘We, the states,’ but “this Constitution is in these words: ‘We the people.’”

The current arrangement is merely a government of States, he asserted, with no power to make laws that apply to individuals of the states and attempts to make laws for the collective States, leaving to them a discretion to comply with them or not. To prove his point, King pointed out that during the Revolutionary War, Massachusetts had paid its requisitions while other States had been delinquent. Some had “shamefully neglected to pay their quotas…two States have not paid a single farthing from the moment they signed the Confederation,” he added.

King put the issue squarely before them: “It is an objection in some gentlemen’s minds, that Congress should possess the power of the purse and the sword. But I would ask whether any government can exist, or give security to the people, which is not possessed of this power.” Abraham White was quick with a response. “In giving this power,” he warned, “we give up everything.”

The “three-fifths clause” raised even more issues. Earlier, Thomas Dawes had softened opposition to the “three-fifths clause” by demonstrating that slavery itself was weakened by other provisions of the Constitution. Now, he would explain at length how new powers granted to the national government in the Constitution would benefit all of the States in the union and all segments of the economy, including agriculture, commerce, and manufacturing. “Our whole commerce is going to ruin,” he wailed, “and Congress has not had the power to make even a trade law…We have no uniformity in duties, imposts, excises or prohibitions.” To some delegates his lengthy discourse was compelling, but Williamsburg’s W. Bodman was not convinced. “Is it necessary to give Congress power to do harm in order to enable them to do good?” he asked. If Congress has all of this power, it destroys the sovereignty of the States.

Bodman’s concerns were supported by Major Kingsley. The Articles provided checks on the people’s representatives in Congress, he noted. There were “annual elections of them, their rotation, and the power to recall any or all of them.” In the new Constitution, “we are deprived of annual elections, have no rotation, and cannot recall our members; therefore, our federal rulers will be masters, and not servants.”

The next morning, Increase Sumner countered. “Gentlemen say,” he began, “the power to raise money may be abused. I grant it, and the same may be said of any other delegated power.” The possibility of abuse of power had been raised on numerous occasions during the convention debates, but Sumner would not have any of it. “Why should we alarm ourselves with imaginary evils?” he asked. Besides, the Constitution does provide for checks against abuse and protections for state sovereignty, contrary to what Kingsley had implied. “The general government depends on the state legislatures for their very existence,” he explained. “The President is to be chosen by electors under the regulation of the state legislatures; the Senate is to be chosen by the state legislatures; and the representative body by the people, under like regulations of the legislative body in the different states.”

Increase Sumner had served in the Massachusetts provincial Congress when the State’s 1780 constitution was approved and later served in the Confederation Congress. In 1782, Governor John Hancock nominated him to the Massachusetts Supreme Judicial Court where he presided with Justice William Cushing when Cushing announced his historic dictum about the “free and equal clause” in the Massachusetts constitution. The two men had met many years earlier when young Increase Sumner enrolled in the grammar school in Roxbury. The school’s headmaster was William Cushing. In the years to come, Sumner will be elected as governor of Massachusetts and Cushing will become one of five original members of the United States Supreme Court, but for now, they are both advocating earnestly for ratification of the Constitution.

Sumner closed his argument by reassuring his colleagues that under the Constitution, “nothing is clearer than that the existence of the legislatures, in the different states, is essential to the very being of the general government.”

William Symmes’ remained skeptical. “We know that all governments have degenerated, and consequently have abused the powers reposed in them,” he said, “and why we should imagine better of the proposed Congress than of myriads of public bodies who have gone before them, I cannot at present conceive.” Nevertheless, Symmes’ skepticism was tempered by a sincere desire to thoroughly evaluate the Constitution before making a final decision. “My constituents,” he said, wish for a firm, efficient Continental government, but fear the operation of this which is now proposed. Let them be convinced that their fears are groundless, and I venture to declare in their name, that no town in the commonwealth will sooner approve the form or be better subjects under it.”

William Symmes’ remained skeptical. “We know that all governments have degenerated, and consequently have abused the powers reposed in them,” he said, “and why we should imagine better of the proposed Congress than of myriads of public bodies who have gone before them, I cannot at present conceive.” Nevertheless, Symmes’ skepticism was tempered by a sincere desire to thoroughly evaluate the Constitution before making a final decision. “My constituents,” he said, wish for a firm, efficient Continental government, but fear the operation of this which is now proposed. Let them be convinced that their fears are groundless, and I venture to declare in their name, that no town in the commonwealth will sooner approve the form or be better subjects under it.”

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