Powers Denied To Congress: A Constitutional Essay

Having already examined at some length the powers denied to the states and the application of those laws for the American Civil War as well as for the current debt crisis of states [1], I thought it would be appropriate to examine the powers denied to Congress. Let us note that by the incorporation clause of the Fourteenth Amendment constitutional limitations on the federal government are automatically applied to the state (and local) governments. However, let us comment some on what limitations are placed on the federal government according to our Constitution, according to Article I, Section 9 of the United States Constitution.

Article I, Section 9 of the U.S. Constitution reads:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State [2].

Let us examine this section clause by clause (there are eight clauses in all) for the historical and contemporary relevance of these restrictions. The first clause prevents Congress from prohibiting the slave trade before 1808 (notice how scrupulous the language is to avoid using the word “slave”: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit), a significant concession to the pro-slavery sentiment of some southern states (namely those who sought to import slaves for less expensively than they could buy “superfluous slaves from areas where slavery was declining) as well as those northern states which profited from the slave trade. As soon as it was constitutionally possible, the slave trade was banned, though passing the law took more time than President Jefferson originally anticipated [3]. Since that time this section of the constitution has lacked relevance except to demonstrate the concessions on freedom that were necessary to secure the support of some states with corrupt social institutions for the Constitution as well as the tortured extremes thought necessary to avoid tainting the text of the Constitution with a direct reference to slavery itself.

The second clause of this article has a strong contemporary relevance and is also very relevant to the Civil War. According to the plain text of the article itself, the writ of habeas corpus (which requires those arrested to be informed of the charges against them in a timely fashion [4]) with only two exceptions: rebellion or invasion. In the Civil War, numerous people were held without habeas corpus, which was constitutionally correct (since the Civil War was a rebellion), even if very irksome to them [5]. Once the rebellion was successfully put down, habeus corpus was restored in 1866 [6]. In the recent “war on terror,” there has been numerous disputes over the rights of habeas corpus for noncitizens [7], and recently laws have been passed that do not appear to pass constitutional muster allowing for the suspension of the writ of habeas corpus on the mere suspicion of terrorism, there being no active rebellion or invasion of the United States (at least at present) that would provide a constitutional reason for such a suspension. It is unclear, however, if the Supreme Court will address this serious matter in a prompt and timely manner, though no doubt constitutional challenges will be made.

The next set of constitutional prohibitions, which is also on the states, prohibits bills of attainder [8] and ex post facto laws. The prohibition on ex post facto laws prevents people from being punished for a particular act while it was not illegal. The bill of attainder prohibition prevents “punishment” from being given to an individual or a group of people without a trial. It is possible that this particular clause of the Constitution makes void numerous “affirmative action” procedures of the Civil Rights Act of 1965 and related laws, which provides “punishment” for various states, including forced busing to equalize the racial distribution of students in public schools, as well as the loss of freedom in districting, as a result of previous racist policies by particular states, without a trial except for a “trial by legislature” through the passage of discriminatory legislation that singles out certain groups of people for special and hostile treatment. It would also appear that this principle would prevent the legislative hassling of judges on mere political grounds, and as a general prohibition on “show trials” conducted in state legislatures as well as Congress for mere political grandstanding, however great the temptation.

Next we come to a clause that is sadly no longer in effect. The purpose of the fourth clause appears to have been to require equality before the law to mean either equal payment by head tax or a proportional tax that meant everyone had to pay a fair share, as opposed to the corrupt socialist progressive taxes we now have as a result of the sixteenth amendment [9]. Though some would suggest that the 16th Amendment was never ratified, I consider it constitutional but lamentable, proof that written constitutions are no defense from the evils that result from the widespread corruption of the people. As it is, we have about 48% of the United States that pays no federal income taxes and yet continually looks for handouts from the government that are paid by the middle class and rich that apparently are unable to have their taxes reduced without howling about class warfare [10]. This is how how republics die. Equality before the law means proportionally equal skin in the game. And that means an end to complicated tax laws that allow certain specific people to game the system in their favor and that created bloated and unsustainable federal bureaucracies.

The fifth clause rather bluntly prevents excise taxes on the export of states. It appears as if there was a major concern that the national government would try to tax exports from the state, to use the productive capability of the new nation as a source of revenue. Taxes on imports (we call them tariffs) was a major source of income for the early republic were acceptable, but taxes on exports were not. Taxes upon imports not only allowed the government to make money on the products of others, but they also “protected” the trade of the early republic and strongly encouraged (through increasing the price of imports) Americans to “buy American.”

The purpose of the sixth clause is rather straightforward. This clause prohibited favoritism from the national government to trade from one state or port over another. This clause is one of several that seeks to place the states on an even playing field, making the Union not only a political union but also a customs and an economic union, by preventing states from being able to lay tariffs on another state’s good, acting as if that state was a separate nation. In both cases the goal was simple, preserving the equality of states (and their businesses) within the union, subject only to differences based on state and local regulations (within constitutional limits).

The seventh clause of Article I, Section 9 has to rank as one of the most often ignored constitutional requirements of all. The meaning of this clause appears rather obvious from its text. First, all money that comes out of the Treasury is required to be appropriated specifically as a result of Congress (starting, of course, in the House of Representatives). No bills means no spending, and it prohibits the Executive (or Judicial branch) of the federal government from spending federal money without explicit congressional authorization. The second part of this clause is just as strongly worded. The Constitution requires periodic and open accounting of all monies spent by the government, without exception. I strongly suspect this clause of the constitution has not been obeyed for decades, given the lack of interest in openness about the ways in which our government spends certain monies.

The last clause is also very specific and very obvious in its meaning. For one, the American Republic was very firm in rejecting any kind of titled aristocracy (no matter how wealthy certain families became, or tried to preserve their wealth through generations). Having firmly rejected the ancien regime where there were definite ranks within society, the drafters of the Constitution wanted to make such permanent nobility extinct within America, even to the level of making the consent of Congress necessary to accept a title even from another nation. And, of course, states as well as the federal government were prohibited from creating a titled nobility, it being the purpose (however frustrated by subsequent events) for the American Republic to be meritocratic, a timonocracy, rather than an aristocracy.

In fact, a great many problems result from a failure to understand what sort of regime the founders of the United States of America were attempting with these restrictions. Clearly, they were looking for ways where proportional taxation (or equal head taxes), a trade and customs union within the various states, as well as a lack of nobility, meant equality both on the state and personal level. States were equal, and had to treat each other (and their citizens) equal because the people within those states were equally American.

This is a truth we have forgotten. Too often we use the law to benefit our “friends,” or desire special treatment, that we fail to recognize that the equality desired by the founders was not an equality of lifestyles, where everyone had the same standard of living (the founders pointedly rejected progressive taxation, as we have seen above), but rather an equality of opportunity, where all had a fair chance at success (or failure), and where all were equal in the eyes of the law, without any kind of special status. There were certainly ways (slavery and sexism were certainly two of them, as well as an assumption not borne out that America’s elites represented a true meritocracy and not an aristocracy, and which in some areas of the country, like the South, only became more and more problematic with time).

We are certainly not beholden to the views of the Founders. Nonetheless, we ought to reflect that the Constitution they made, and that we (with amendments) are still under reflects a particular worldview. Whether we agree or disagree with them, whether we think the founders to be hypocrites for the inconsistencies of their own actions with their openly stated ideals or whether we recognize that every age of man has its own pious hypocrisies and therefore forgive them their sins that we may be forgiven of ours, we ought to reflect clearly on the goals and ambitions of those whom we claim to honor and respect by being patriotic Americans. If we have a different worldview than they did, we need to seriously ponder to what extent it is because we are more consistent with our shared ideals, or whether we are truly a different people from them.

[1] https://edgeinducedcohesion.wordpress.com/2011/02/09/powers-denied-to-the-states-a-constitutional-essay/

[2] http://www.house.gov/house/Constitution/Constitution.html

[3] http://history1800s.about.com/od/slaveryinamerica/a/1807slaveact.htm

[4] http://www.lectlaw.com/def/h001.htm

[5] http://www.thecivilwaromnibus.com/articles/94/the-suspension-of-habeas-corpus-during-the-civil-war/

[6] http://www.civil-liberties.com/pages/did_lincoln.htm

[7] http://www.harvardlawreview.org/issues/120/june07/Article_4517.php

[8] http://www.techlawjournal.com/glossary/legal/attainder.htm

[9] http://en.wikipedia.org/wiki/Sixteenth_Amendment_to_the_United_States_Constitution

[10] http://www.nytimes.com/2010/04/14/business/economy/14leonhardt.html

About nathanalbright

I'm a person with diverse interests who loves to read. If you want to know something about me, just ask.
This entry was posted in American Civil War, American History, History, Military History, Musings and tagged , , . Bookmark the permalink.

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