Thoughts on the Constitution: Article I
Article I
Section 1.
All legislative
Powers herein granted shall be vested in a Congress of the United States, which
shall consist of a Senate and House of Representatives.
Legislative power is the power to make law (from Latin, lex, legis). It is significant that the
first article outlines the process by which laws are to be made. This is
clearly one of the most important functions of government. A just, free, and
prosperous society depends upon the rule of law, impartially administered.
Under the Constitution the legislative power is entrusted to
Congress, which consists of two chambers:
the Senate and the House of Representatives.[1]
We find here another division of power. In order for a law to be passed, it has
to be approved by both chambers of Congress. Although both are involved in
making law, they represent different interests—at least this was true under the
original form of the Constitution. Originally, Senators were chosen by their
state’s legislature, and they represented the states as states. It is not just the people of the states who have an
interest in the federal government; the state governments have an interest as
well. And the state governments were originally represented by Senators whom they chose, not the people. As we shall
see, this was changed by the 17th Amendment (1913).
The
Constitution…adopts, as a fundamental rule, the exercise of the legislative
power by two distinct and independent branches. The advantages of this division
are, in the first place, that it interposes a great check upon undue, hasty,
and oppressive legislation. In the next place, it interposes a barrier against
the strong propensity of all public bodies to accumulate all power, patronage,
and influence in their own hands. In the next place, it operates, indirectly,
to retard, if not wholly to prevent, the success of the efforts of a few
popular leaders, by their combinations and intrigues in a single body, to carry
their own personal, private, or party objects into effect, unconnected with the
public good. In the next place, it secures a deliberate review of the same
measures, by independent minds, in different branches of government, engaged in
the same habits of legislation, but organized upon a different system of
elections. And, in the last place, it affords great securities to public
liberty, by requiring the cooperation of different bodies, which can scarcely
ever, if properly organized, embrace the same sectional or local interest, or
influences, in exactly the same proportion, as a single body.[2]
Section 2.
Section 1 provides in general terms for a Congress of the United
States, which is to consist of two chambers:
a Senate and a House of Representatives. Section 2 deals specifically
with the House of Representatives. The section is divided into six paragraphs.
The first establishes the length of the term of office for members of the House
and explains who may participate in their election.
The House of Representatives shall be composed
of Members chosen every second Year by the People of the several States, and
the Electors in each State shall have the Qualifications requisite for Electors
of the most numerous Branch of the State Legislature.
The House
of Representatives shall be composed of Members chosen every second Year by the
People of the several States — Members of the House serve for a term of two
years. Elections are held every even numbered year (2010, 2012, 2014, etc.),
and the newly elected (or re-elected) members begin their term in January of
the following odd numbered year (2011, 2013, 2015, etc.).
There is wisdom in having a relatively short term of office. The
shorter the term, the more accountable members of the House are to the voters
in their home district. Every two years they must face their constituents, who
stand in judgment as to how faithfully they have fulfilled the duties of their
office. But the term is not so short that there is no opportunity to gain experience
in serving.
And the
Electors in each State shall have the Qualifications requisite for Electors of
the most numerous Branch of the State Legislature —
“Electors” are those who have the right to vote. If the Constitution were to be
re-written in modern English this line might read, “And the Voters in each
State” etc.
This paragraph ensures that those whom each state regards as
qualified to vote for the most numerous branch of the each state legislature shall be permitted to vote for members of the
U.S. House of Representatives. Like Congress, most states have two chambers in
their state legislatures: a smaller
upper house (a state Senate), and a larger lower house (a state House of
Representatives or state Assembly or House of Delegates).[1]
This provision of the Constitution guarantees that whoever is qualified to vote
for members of the lower house in each state is qualified to vote for the lower
house of the federal government (i.e., the U.S. House of Representatives).
When the Constitution was ratified, each state had its own
qualifications for voting for members of the state legislature. In some states,
only those admitted to the privileges of freemen could vote.[2]
In others, it was necessary to own property.[3]
In still others, the right to vote was extended to nearly every free man.[4]
The Constitution adopts the same qualifications for voting for members of the
House of Representatives that each state adopted for the corresponding house in
the state legislature because the Framers wished to respect whatever
qualifications for voting each state had in place.
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The second paragraph of Article I, Section 2 reads:
No Person
shall be a Representative who shall not have attained to the Age of twenty five
Years, and been seven Years a Citizen of the United States, and who shall not,
when elected, be an Inhabitant of that State in which he shall be chosen.
The first paragraph gives the qualifications for those eligible to
vote for members of the House of Representatives. This paragraph gives the
qualifications for those eligible to be elected. Three qualifications are
given, and they have to do with: (1)
age, (2) citizenship, and (3) residency.
Age requirements are given in the Constitution for members of the
House (25), members of the Senate (30), and for the President (35). As a
general rule, greater learning and wisdom come with greater age and experience.
For this reason, it has always been thought desirable to choose older men to
serve in governing offices. Thus, rulers have often been called “elders” (Ex.
3:16; Num. 11:16; 1 Sam. 8:4; Acts 14:23; 1 Tim. 5:17; Tit. 1:5; etc.).[5]
This is reflected in the word “senate,” which comes from the Latin, senex, an old man. Twenty-five to
thirty-five years of age might not seem very old by today’s standards until we
consider the fact that people tended to mature much earlier in the colonial
period, since survival often depended on one’s maturity. And if we also
consider the fact that the average lifespan in colonial America was about 45
years, to limit the office to men much older than 25-35 would shrink the pool
of available candidates considerably.
The rising minimum age for each of these offices reflects the
greater degree of responsibility, and thus the greater wisdom and experience
that are necessary to fulfill the duties of the office. We should note as well
that the fewer the number, the greater the age. The House of Representatives is
the most numerous body and has the lowest minimum age. The Senate has fewer
members and has a greater minimum age. The office of President is filled by one
man and has the highest minimum age. The younger people are, the more apt they
are to act impulsively. This impulsiveness is tempered by numbers. One man is
more likely to act impulsively—unless he is restrained by good judgment—than a
large number of men.
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The third paragraph of Article I, Section 2 has to do with
representation and taxes with respect to the slave population. The southern, slave-holding
states wished to count slaves for purposes of representation in Congress, but
not for purposes of taxation. They argued that since slaves were as much a part
of the human population of a state as free men, they were just as entitled to
representation in Congress.
The northern, non-slave-holding states wanted slaves to be counted
for purposes of taxation, but not for representation. They argued that slaves
were not free, could not vote, and therefore were not entitled to
representation. Furthermore, they argued that since slaves were deemed to be
the property of their owners, they should be counted as taxable property when direct taxes were levied.
The disagreement was very heated and led to a standoff that nearly
caused the Convention to come to an end. James Madison, however, proposed a solution
that was eventually accepted and has come to be called the Three-Fifths
Compromise. Three-fifths of the total slave population of each state would be
counted both for purposes of representation and for apportioning direct taxes.
The compromise is included in the bracketed text below, and was changed by
section 2 of the Fourteenth Amendment.
[[Representatives and direct Taxes shall be apportioned
among the several States which may be included within this Union, according to
their respective Numbers, which shall be determined by adding to the whole
Number of free Persons, including those bound to Service for a Term of Years,
and excluding Indians not taxed, three fifths of all other Persons.]] The actual Enumeration shall be made
within three Years after the first Meeting of the Congress of the United
States, and within every subsequent Term of ten Years, in such Manner as they
shall by Law direct. The Number of Representatives shall not exceed one for
every thirty Thousand, but each State shall have at Least one Representative;
and until such enumeration shall be made, the State of New Hampshire shall be
entitled to chuse three, Massachusetts eight, Rhode-Island and Providence
Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania
eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South
Carolina five, and Georgia three.
The paragraph requires that representation be based on the whole
number of free persons, including indentured servants (“those bound to Service
for a Term of Years”), plus three-fifths of “all other persons” (i.e., slaves).
Indians who paid no taxes were not counted for representation.
The paragraph also authorizes a census to be taken three years
after ratification and every ten years thereafter. “The actual Enumeration
shall be made within three Years after the first Meeting of the Congress of the
United States, and within every subsequent Term of ten Years.”
An upper limit was set for number of representatives relative to
the population. “The Number of Representatives shall not exceed one for every
thirty Thousand…” If a state did not have 30,000 inhabitants, it was still
entitled to at least one representative. Until the time of the first census,
the number of representatives for each state (based on its estimated population) was given as:
New Hampshire (3)
Massachusetts (8)
Rhode-Island (1)
Connecticut (5)
New York (6)
New Jersey (4)
Pennsylvania (8)
Delaware (1)
Maryland (6)
Virginia (10)
North Carolina (5)
South Carolina (5)
Georgia (3)
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The fourth paragraph of Article I, Section 2 reads:
When vacancies happen in the Representation
from any State, the Executive Authority thereof shall issue Writs of Election
to fill such Vacancies.
The meaning of this provision is pretty clear. If it should happen
that a representative is unable for any reason to complete his term, the
governor of his state shall provide for an election to be held in order for the
people to select a new one.
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The fifth paragraph of Article I, Section 2 reads:
The House of Representatives shall chuse their
Speaker and other Officers; and shall have the sole Power of Impeachment.
The paragraph makes two provisions. The first is the election of a
Speaker. The powers and duties of the Speaker are not specifically stated but
are implied in the title. The title was used in the British House of Commons
for the presiding officer. The Constitution defines the powers and duties of
the House of Representatives as body, and the Speaker is to preside over the
House’s proceedings. He sets the agenda, determines the order in which the
members of the House speak (no one can speak on the House floor until
recognized by the Speaker), rules on points of order, and appoints the chairman
of a number of House committees.
The
Speaker is chosen by the members of the House, which in effect means he is
chosen by whichever party has a majority. The first Speaker of the House was
Frederick Muhlenberg of Pennsylvania. The current Speaker is John Boehner, a
Republican who represents Ohio’s 8th congressional district.
In Great Britain, the Speaker of the
House of Commons was chosen by its members, but had to be approved by the King.
Some of the Colonies had a similar arrangement prior to Independence—the
Speaker of the lower house of the colonial legislature was chosen by its members,
subject to the approval of the governor. The framers of the Constitution,
however, wished to keep the powers of the executive and legislative branches of
the federal government separate and so did not require the president’s approval
of the House’s election of a Speaker.
The Presidential Succession Act of 1947 provides that in the event
that neither the President nor the Vice President is able to “discharge the
powers and duties of the office,” the Speaker of the House shall act as
President.
This paragraph also provides the House of Representatives with
“the sole Power of impeachment.” The power of impeachment is the power to,
present a
written accusation against persons in high offices and trusts, for the purpose
of bringing them to trial and punishment for gross misconduct… The articles of
impeachment, are a sort of indictment; and the House, in presenting them, acts
as a grand jury, and also as a public prosecutor. The great object of this
power is, to bring persons to justice, who are so elevated in rank or
influence, that there is danger they might escape punishment before the
ordinary tribunals; and the exercise of power is usually confined to political
or official offences.[6]
Article 2 Section 4 states, “The President, Vice President and all
civil Officers of the United States, shall be removed from Office on
Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.”
Article 1 Section 3 provides that the Senate “shall have the sole
Power to try all Impeachments.” This means that the members of the Senate serve
as judges. The House acts as the prosecuting attorney, the Senate acts as
judge. Conviction requires a two-thirds majority vote in the Senate. Upon
conviction, an official is removed from office.
Nineteen federal officials have been impeached, including two
presidents (Andrew Johnson and Bill Clinton), one Senator, fourteen judges, and
one Secretary of War. Of these, seven were acquitted, ten were removed from
office, and three resigned prior to trial.
Section 3.
Section 1 provides in general terms for a Congress of the United
States, which is to consist of two chambers:
a Senate and a House of Representatives. Section 2 deals specifically
with the House of Representatives and Section 3 with the Senate. Section 3 is
divided into seven paragraphs, the first of which reads as follows:
The Senate
of the United States shall be composed of two Senators from each State,
[[chosen by the Legislature]] thereof for six Years; and each Senator shall
have one Vote.
Unlike the House, in which representation is proportional
according to population, in the Senate each state has equal representation with
two Senators apiece. The Section originally provided for Senators to be chosen
by each state’s legislature. This is because the Senators were specifically to
represent the states as states.
Whereas the members of the House of Representatives were intended to represent
the people of the states; the members
of the Senate were to represent the governments
of the states. The portion of the paragraph included in the brackets was
changed by the 17th Amendment to read “elected by the people”. The
amendment weakens the power of the state governments, which now have no
official voice in the federal government.
Whereas members of the House serve for two years, Senators are
elected to a six year term of office. The longer term provides for a greater
continuity of government. “They should be chosen for a longer period than the
House of Representatives, in order to prevent sudden, and total changes at the
same period of all the functionaries of the government, which would necessarily
encourage instability in the public councils, and stimulate political
agitations and rivalries.”[7]
Each Senator is given one vote. This is a change from the Articles
of Confederation, which granted each state one vote, however large their
delegation the Continental Congress might have been.
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The second paragraph of Article 1 Section two provides for the
division of the Senate into thirds.
Immediately
after they shall be assembled in Consequence of the first Election, they shall
be divided as equally as may be into three Classes. The Seats of the Senators
of the first Class shall be vacated at the Expiration of the second Year, of
the second Class at the Expiration of the fourth Year, and of the third Class
at the Expiration of the sixth Year, so that one third may be chosen every
second Year…
Every two years, every
seat in the House of Representatives and one
third of the seats in the Senate is vacated.[8]
The staggered terms of the Senators, like their longer terms, ensures that
there is a greater continuity and stability of government.
The next portion of the paragraph explains how a vacant Senate
seat is to be filled when the state legislature is in recess. Recall that
originally the choosing of Senators was the responsibility of the state
legislature. But a state legislature only meets during a few months in the
year. What happens if a Senator should die when the state legislature is in
recess and cannot meet to choose a new one? Without two Senators, a state is
underrepresented in Congress. “If Vacancies happen by Resignation, or
otherwise, during the Recess of the Legislature of any State, the Executive
thereof may make temporary Appointments until the next Meeting of the
Legislature, which shall then fill such Vacancies.” This provision was also
changed by the 17th Amendment. Since by the provision of the 17th
Amendment the right to choose Senators was transferred from state legislatures
to the people of the states, the filling of vacancies was also transferred to
the people, after a temporary appointment by the governor.
When
vacancies happen in the representation of any State in the Senate, the
executive authority of such State shall issue writs of election to fill such
vacancies: Provided, That the legislature of any State may empower the
executive thereof to make temporary appointments until the people fill the
vacancies by election as the legislature may direct.[9]
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No Person shall be a Senator who shall not
have attained to the Age of thirty Years, and been nine Years a Citizen of the
United States, and who shall not, when elected, be an Inhabitant of that State
for which he shall be chosen.
The responsibilities of Senators are greater
than those of Representatives, therefore the requirements for holding office
are greater with respect to age and citizenship. It is required that
Representatives be at least 25 years of age and be seven years a citizen. But
for Senators this is increased to 30 years of age and least nine years for
citizenship.
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The Vice President of the United States shall
be President of the Senate, but shall have no Vote, unless they be equally
divided.
As it happens, the Vice President rarely
presides over the proceedings of the Senate today. This responsibility is
usually delegated to a president pro tempore, an office which is customarily
filled by the senior senator of the majority party. Although he is President of
the Senate, he may only vote on legislation when there is a tie. Vice
Presidents have cast 242 tie-breaking votes in our history.
According to the provisions of the 12th
Amendment, the Vice President is to preside over the joint session of Congress
when it convenes to count the vote of the Electoral College.
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The Senate shall chuse their other Officers,
and also a President pro tempore, in the Absence of the Vice President, or when
he shall exercise the Office of President of the United States.
This paragraph ensures that the Senate shall
have the power to organize itself by choosing its own officers. It specifically
requires the selection of a President pro tempore—a President (of the Senate) for the time being. If the Vice
President shall be called upon to exercise the office of President because of
the latter’s death or illness or some other reason, then the President pro
tempore is to fulfill the Vice President’s duties in the Senate.
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The Senate shall have the sole Power to try
all Impeachments. When sitting for that Purpose, they shall be on Oath or
Affirmation. When the President of the United States is tried, the Chief
Justice shall preside: And no Person shall be convicted without the Concurrence
of two thirds of the Members present.
As noted before, the House of Representatives
has the sole power of impeachment—to present a formal charge of wrongdoing by
an officer of the federal government (Art. 1, Sec. 2). This paragraph invests
the Senate with the sole responsibility to “try all impeachments.” This means
that the Senate will conduct a trial by sitting as judges and making a
determination on whether the impeached official should be convicted.
When meeting for the purpose of conducting a
trial of impeachment, the members of the Senate will be “on Oath or
Affirmation.”
This
is required in all cases of trials in the common courts of law. Jurymen, as
well as Judges, are always under oath or affirmation, in the discharge of their
respective duties. It is a sanction, appealing to their consciences, and
calling upon them to reflect well upon their duties.[10]
The Vice President is president of the Senate
(Art. 1, Sec. 3, par. 4) and thus would normally preside over trials of
impeachment. However, “When the President of the United States is tried, the
Chief Justice shall preside.” Since the Vice President might be supposed to
have a vested interest in the outcome (either defending the President for whom
he works, or else wishing to see him removed in order that he might take his
place), this paragraph provides that the Chief Justice of the Supreme Court
shall preside.
The standard for conviction is greater than a
simple majority. “And no Person shall be convicted without the Concurrence of
two thirds of the Members present.”
Judgment in Cases
of Impeachment shall not extend further than to removal from Office, and
disqualification to hold and enjoy any Office of honor, Trust or Profit under
the United States:
The punishment imposed in cases of conviction
is limited to removal from office and disqualification from ever holding office
again.
but the Party convicted shall nevertheless be
liable and subject to Indictment, Trial, Judgment and Punishment, according to
Law.
This means that if the offence for which an official is convicted
is also a criminal offence, he may be tried in a common court of law and, if
convicted, suffer further penalties.
Section 4.
The Times, Places and Manner of holding
Elections for Senators and Representatives, shall be prescribed in each State
by the Legislature thereof; but the Congress may at any time by Law make or
alter such Regulations, except as to the Places of chusing Senators.
Originally the “Times, Places and Manner of holding Elections for
Senators and Representatives” was left up to the discretion of the legislature
of each state and each state decided these matters as it best suited them. But
the option was granted to Congress to regulate the matter by legislation, which
it did in 1872, setting elections on Tuesday after the first Monday in November
in every even-numbered year. Congress allows Alaska to choose a different date.
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The second paragraph of Article 1 Section 4 specifies the day when
Congress shall begin its session.
The Congress shall assemble at least once in
every Year, and such Meeting shall [[be on the first Monday in December]], unless they shall by Law appoint a
different Day.
The date was changed by the 20th Amendment to January
3.
Section 5.
Each House shall be the Judge of the
Elections, Returns and Qualifications of its own Members, and a Majority of
each shall constitute a Quorum to do Business; but a smaller Number may adjourn
from day to day, and may be authorized to compel the Attendance of absent
Members, in such Manner, and under such Penalties as each House may provide.
Each “House” (or “chamber,” i.e., Senate and House of
Representatives) is responsible for overseeing that its members meet the
Constitutional requirements of holding office (age, citizenship, and residency
requirements). In Powell v. McCormack
(1969) the Supreme Court ruled that a member may also be refused a seat if it has
been discovered that he was elected fraudulently.
A simple majority in each chamber constitutes a quorum (minimum
number present in order to conduct business). If there is less than the number
necessary for a quorum, they may officially adjourn from day to day as
necessary until a quorum is present. Or, if it is deemed necessary, they may
pass a measure to “compel the Attendance of absent Members, in such Manner, and
under such Penalties as each House may provide.” Members might be absent for
any one of a number of reasons. But if they are absent for the purpose of
preventing a quorum in order to forestall a vote, the chamber is authorized “to
compel the Attendance of absent Members…under such Penalties as each House may
provide.”
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Each House may determine the Rules of its
Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence
of two thirds, expel a Member.
Each house makes its own rules, but these rules must not violate
the Constitution. Each house has the following rules of debate:
In the Senate: Senators may
debate as long as they wish; however, the Cloture Rule was adopted to curb filibustering—“talking a bill to death.”
A filibuster occurs when one or more senators monopolize debate in an attempt
to kill a bill by using all the time allotted for its consideration before it
is put to a vote. As the rule now stands, at least sixteen senators must submit
a petition calling for a vote to invoke the Cloture Rule. The vote must be
taken within two days, and a two thirds majority of the senators present and voting is necessary for approval. If cloture is invoked, each senator
must limit his discussion of the bill under consideration to one hour. When
discussion is completed, the Senate votes on the bill.
In the House: House rules
limit the debate of each representative to one hour unless the time is extended
by unanimous consent.[11]
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There is to be an official record of the proceedings of each
house, made accessible to the public.
Each House shall keep a Journal of its
Proceedings, and from time to time publish the same, excepting such Parts as
may in their Judgment require Secrecy; and the Yeas and Nays of the Members of
either House on any question shall, at the Desire of one fifth of those
Present, be entered on the Journal.
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Neither House, during the Session of Congress,
shall, without the Consent of the other, adjourn for more than three days, nor
to any other Place than that in which the two Houses shall be sitting.
Section 6.
The Senators and
Representatives shall receive a Compensation for their Services, to be
ascertained by Law, and paid out of the Treasury of the United States. They
shall in all Cases, except Treason, Felony and Breach of the Peace, be
privileged from Arrest during their Attendance at the Session of their
respective Houses, and in going to and returning from the same; and for any
Speech or Debate in either House, they shall not be questioned in any other
Place.
There are several
important provisions in this paragraph. The first is that Senators and
Representatives are to be paid for their services and are to be paid out of the
Treasury of the United States. They are not paid by the states that send them,
but by the federal government. The amount they are to be paid is to be set by
law…in other words, by Congress itself. The latest Amendment also deals with
congressional compensation. “No law, varying the compensation for the services
of the Senators and Representatives, shall take effect, until an election of
Representatives shall have intervened.”[12]
It would be a great mistake to consider it
[immunity from arrest], as in reality a personal privilege, for the benefit of
the member. It is rather a privilege for the benefit of his constituents, that
they may not be deprived of the presence, services, and influence of their own
Representative in the national councils. It might otherwise happen, that he
might be arrested from mere malice, or from political persecution, or upon some
unfounded claim and thus they might be deprived of his aid and talents during
the whole session.[13]
Immunity from
arrest is limited, however. It does not include cases of treason, felony, or
breach of the peace. “Treason is the highest crime of a civil nature of which a
man can be guilty… It is the offense of attempting to overthrow the government
of the state to which the offender owes allegiance, or of betraying the state
into the hands of a foreign power.”[14] At
the time in which the Constitution was written, a felony was a crime punishable
with death.[15] A “Breach of the Peace”
is,
a violation or disturbance of the public
tranquility and order… The offense of breaking or disturbing the public peace
by any riotous, forcible, or unlawful proceeding. Breach of the peace is a
generic term, and includes all violations of public peace or order and acts
tending to a disturbance thereof.[16]
The paragraph
also ensures that members of the House and of the Senate have perfect freedom
of speech in the debates in their respective chambers without fear of being
prosecuted. “For any Speech or Debate in either House, they shall not be
questioned in any other Place.” The threat of being sued might otherwise be
used to stifle open debate.
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No Senator or Representative shall, during the
Time for which he was elected, be appointed to any civil Office under the
Authority of the United States, which shall have been created, or the
Emoluments whereof shall have been encreased during such time; and no Person
holding any Office under the United States, shall be a Member of either House
during his Continuance in Office.
A member of Congress may not be appointed to any newly created
federal office. Otherwise it has the appearance that the office was created for
the personal benefit of the member.
In a similar way, it is forbidden for a member of Congress to be
appointed to a federal office during the session in which Congress approved an
increase in the salary of the officeholder.
If a member of Congress is appointed to a federal office, he must
resign his position in Congress. “No Person holding any Office under the United
States, shall be a Member of either House during his Continuance in Office.”
If, say, a member of Congress should be appointed by the President to be a
judge, or a member of his cabinet, the congressman must resign before assuming
the duties of his new office.
Section 7.
Section seven of Article I explains the way in which bills (pieces of legislation, laws) are passed. As some of the most
controversial bills are those that deal with taxes, these are specified
particularly and dealt with first.
All Bills for raising Revenue shall originate
in the House of Representatives; but the Senate may propose or concur with
Amendments as on other Bills.
Raising revenue
is done by imposing taxes. The government has no other way of filling its
coffers. As this has always been a very controversial power, the Constitution
wisely puts it into the hands of that body of the federal government which is
closest to the people. Senators were originally only indirectly elected by the
people, through the state legislature. Since the time of the 17th
Amendment (1913), they have been chosen directly by the people in state-wide elections. On the other hand,
members of the House of Representatives are chosen by a smaller group of
people—the citizens of their own districts. Thus, they are personally
acquainted with a larger percentage of their constituents and can therefore be
more easily held accountable and voted out of office if they do not faithfully
represent them.
Although tax
bills must originate in the House, they must also be approved by the Senate,
which may offer amendments to the bills proposed by the House. Bills dealing
with any other matter may originate in either the House or the Senate.
Regardless of
where a bill originates, it must be approved by both Houses and signed by the
President in order to become law.
Every Bill which
shall have passed the House of Representatives and the Senate, shall, before it
become a Law, be presented to the President of the United States: If he approve
he shall sign it, but if not he shall return it, with his Objections to that House
in which it shall have originated, who shall enter the Objections at large on
their Journal, and proceed to reconsider it.
A bill only requires a simple majority vote in order to be
approved by Congress. A simple majority in the House (435 members) is 218
votes. A simple majority in the Senate (100) is 51 votes. Once a bill passes
both Houses, it must be signed by the President for it to become law. If he
disapproves of the bill, he may veto
it. That is, he may return it to the House in which it originated for further
reconsideration.
If after such Reconsideration two thirds of that
House shall agree to pass the Bill, it shall be sent, together with the
Objections, to the other House, by which it shall likewise be reconsidered, and
if approved by two thirds of that House, it shall become a Law. But in all such
Cases the Votes of both Houses shall be determined by yeas and Nays, and the
Names of the Persons voting for and against the Bill shall be entered on the
Journal of each House respectively.
A President’s veto may be overridden by a two-thirds majority of
each House. An override requires 290 votes in the House and 67 votes in the
Senate. If the bill has such wide support from both Houses, it cannot be
stopped by the President from becoming law. Even if he refuses to sign the
bill, it nevertheless becomes law after ten days.
If any Bill shall not be returned by the President
within ten Days (Sundays excepted) after it shall have been presented to him,
the Same shall be a Law, in like Manner as if he had signed it, unless the
Congress by their Adjournment prevent its Return, in which Case it shall not be
a Law.
Congress may not simply adjourn before the ten days are completed
in order to prevent the President from returning the bill with his veto and
still expect the bill to become law.
The next paragraph gives a restatement and summary of how a bill
becomes law.
Every Order, Resolution, or Vote to which the
Concurrence of the Senate and House of Representatives may be necessary (except
on a question of Adjournment) shall be presented to the President of the United
States; and before the Same shall take Effect, shall be approved by him, or
being disapproved by him, shall be repassed by two thirds of the Senate and
House of Representatives, according to the Rules and Limitations prescribed in
the Case of a Bill.
Section 8.
Section 8 is one of the most important sections of the
Constitution because it defines the powers of Congress. These powers are often
referred to as “enumerated powers,” meaning powers that are expressly stated in
the Constitution. Congress is authorized to perform only those tasks that are mentioned in this section. This limited
nature of congressional (as well as executive and judicial) power is further
explained in the Tenth Amendment: “The
powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the
people.”
There are eighteen enumerated powers, each of which is introduced
with the word “To” (with a capital T).
The Congress shall have Power To lay and
collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for
the common Defence and general Welfare of the United States; but all Duties,
Imposts and Excises shall be uniform throughout the United States;
The first of the
enumerated powers of Congress is “To lay and collect Taxes, Duties, Imposts and
Excises.” Every government must have money in order to operate. The only way
for a government to get money is through taxation.
Four words are
used to indicate the kind of taxes Congress may levy. The first is a generic
term that can be applied broadly: taxes. The next three words are more
specific. Duties and Imposts are taxes levied on
imports—goods entering the United States. We can think of them as border taxes.
When goods are produced in another country, a duty or impost may be charged for
the right to cross the border to be sold in the United States. Excises can be thought of as an inland tax. It is a tax on specific
goods produced and sold within the United States. This is different from an ordinary sales tax
which taxes all items sold at the same rate.[17]
An excise is an additional tax on certain items, often alcohol, motor fuel, and
tobacco products.[18]
The Constitution
authorizes Congress to use tax revenue to “pay the Debts… of the United
States.”
When the
Constitution was ratified the young country had considerable debt from the War
for Independence. One of the weaknesses of the Articles of Confederation was
that it did not authorize the Continental Congress to raise revenue by imposing
taxes. Consequently, when Congress apportioned the debt among the states and
some states did not send the necessary funds, Congress had no power to enforce
the collection of taxes.
The Constitution
also authorizes Congress to use tax revenue to “provide for the common Defence
and general Welfare of the United States.” To provide for the common defense
means to fund a military to defend the states against foreign enemies. The
“general Welfare” clause has been a source of great mischief wrought be those
who take the “living document” view of the Constitution. It has been interpreted
so broadly as to encompass nearly anything and everything Congress has wished
to do provided that it can somehow be explained as promoting the general well-being
of the country. In its original signification, the clause referred to that
which promoted the welfare of the country as a whole, as opposed to that which
promoted the welfare of this or that state, or this or that portion of the
population. Now it is interpreted so broadly as to apply to very small segments
of the population.[19]
The “general
Welfare” clause[20] is one of three clauses
in the Constitution that have been greatly abused by being interpreted so
loosely as to remove virtually all limitations on the power of the Federal
Government. The other two are the commerce clause[21]
and the necessary and proper clause.[22]
The meaning of
the general welfare clause was a subject of concern to the Anti-Federalists.[23]
I would ask those,
who reason thus, to define what ideas are included under the terms, to provide
for the common defence and general welfare? Are these terms definite, and will
they be understood in the same manner, and to apply to the same cases by every
one? No one will pretend they will. It will then be matter of opinion, what
tends to the general welfare; and the Congress will be the only judges in the
matter. To provide for the general welfare, is an abstract proposition, which
mankind differ in the explanation of, as much as they do on any political or
moral proposition that can be proposed; the most opposite measures may be
pursued by different parties, and both may profess, that they have in view the
general welfare; and both sides may be honest in their professions, or both may
have sinister views. Those who advocate this new constitution declare, they are
influenced by a regard to the general welfare; those who oppose it, declare
they are moved by the same principle; and I have no doubt but a number on both
sides are honest in their professions; and yet nothing is more certain than
this, that to adopt this constitution, and not to adopt it, cannot both of them
be promotive of the general welfare.
James Madison
sought to allay the fears of those who believed the general welfare clause was
an expansive grant of power to Congress in Federalist 41. He argued that the
general welfare was defined and limited by the items subsequently listed in
Article 1, Section 8.
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 expressions just cited, the authors of the
objection might have had some color for it; though it would have been difficult
to find a reason for so awkward a form of describing an authority to legislate
in all possible cases. A power to destroy the freedom of the press, the trial
by jury, or even to regulate the course of descents, or the forms of
conveyances, must be very singularly expressed by the terms "to raise
money for the general welfare."
But
what color can the objection have, when a specification of the objects alluded
to by these general terms immediately follows, and is not even separated by a
longer pause than a semicolon? If the different parts of the same instrument
ought to be so expounded, as to give meaning to every part which will bear it,
shall one part of the same sentence be excluded altogether from a share in the
meaning; and shall the more doubtful and indefinite terms be retained in their
full extent, and the clear and precise expressions be denied any signification
whatsoever? 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 nor 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.
In summary, the
first paragraph of Article 1, Section 8 explains in general terms the powers
given to Congress, and the remaining seventeen paragraphs explain these powers
in greater detail.
To borrow Money on the credit of the United
States;
Under sound
management, a government should rarely need to borrow money, but in the event
of sudden and unforeseen emergency situations (such as war), it might be
necessary to do so. This provision of the Constitution authorizes the Federal
Government to borrow money when needed. For the current state of our
indebtedness, check out the U.S. National Debt Clock
(http://www.usdebtclock.org/). Currently the Federal Government owes over 16 trillion dollars.
To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes;
As noted earlier,
the power granted to Congress to regulate commerce has been greatly
abused. In order to properly understand
the original meaning and purpose of this provision we must first understand the
meaning of the word commerce. How would the Framers have understood the word?
What was its meaning in their day? In Samuel Johnson’s Dictionary of the English Language (1755), the standard dictionary
on both sides of the Atlantic at the time, commerce is defined as, “exchange of
one thing for another; interchange of any thing; trade; traffick.”[24] Similarly,
Noah Webster’s American Dictionary of The
English Language (1828) defines commerce as “an interchange or mutual
change of goods, wares, productions, or property of any kind, between nations
or individuals, either by barter, or by purchase and sale; trade; traffick.”
Various legal authorities of the period likewise use the word “commerce” to
mean the buying and selling of goods.
What kind of
commerce does the commerce clause refer to? “Commerce with foreign Nations, and
among the several States, and with the Indian Tribes.”
The Founders’
concern for commerce with foreign Nations was expressed very early. In 1765,
for instance, in reaction to the passage of the Stamp Act, representatives from
several of the colonies gathered in New York to form what has come to be called
the “Stamp Act Congress,” which was in fact the very first congress of the
American colonies. The delegates drafted a document entitled the “Declaration
of Rights and Grievances.” The document was “a humble application to both
houses of parliament to procure the repeal” of various laws that resulted in “the
restriction of the American commerce” with the mother country and with foreign
nations.
But the Founders’
interest in commerce “among the several States” was also a great concern. As
Adam Freedman points out,
The regulation of commerce was the very issue
that brought the delegates to Philadelphia in the first place. In the years
following the Revolution, the states had erected so many protectionist barriers
against each other that the Republic’s economy was in jeopardy. Under the
Articles of Confederation, however, Congress was powerless to intervene.
In 1786 delegates from five states—New York,
New Jersey, Delaware, Pennsylvania, and Virginia—met in Annapolis to consider
the problem. After a brief session, they passed a resolution calling for a new
convention the following May in Philadelphia, with the express purpose of
devising a uniform system of “commercial regulations” throughout the states.[25]
Freedman says
further:
The innovative part of the commerce clause was
the power to regulate not only foreign and Indian commerce but also commerce
“among the several States”—a power that the Congress lacked under the Articles
of Confederation. The other parts of the clause—regulation of trade with
foreign nations and Indian tribes—existed in earlier documents.[26]
The Framers’
intent in granting Congress the power to regulate commerce was to insure a
uniform policy with respect to both international as well as interstate trade.
With respect to
international trade, instead of each state developing its own trade agreements
with foreign nations, Congress would negotiate such agreements on their behalf.
One agreement would apply to all the states.
This would prevent envy and rivalry between the states if some should be
able to negotiate more favorable terms for a trade agreement with a foreign
nation than another. In addition, with all the states acting together, they had
a position of greater strength in their negotiations.
Congress is also
given the power to regulate interstate trade (“trade among the several States”).
Again, the aim of Congress was to have a uniform policy that applied to all the
states equally instead of each state developing its own policies with different
states, thus greatly complicating and hindering trade, and consequently tending
to injure the prosperity of all the states.
Madison made
clear in Federalist 42 that “commerce among the States” meant commerce “between
State and State,” that is, between people of different states. It did not mean
commerce within a state, but commerce
between people buying, selling, trading, or bartering across state lines.
However, as early
as 1824, in Gibbons v. Ogden, Chief
Justice John Marshall ruled that the commerce clause applied whenever a state’s
internal commerce might “affect other States.” By 1937 the Supreme Court ruled
in NLRB v. Jones & Laughlin that
“no field of regulation was ‘forbidden’ to Congress as long as there was some
connection to commerce.”[27]
Perhaps the case
that best illustrates just how expansively the commerce clause has been interpreted
is the (in)famous Wickard v. Filburn
(1942). The case was decided 9-0. The decision was written by Justice Robert
Jackson. The case involved a small Ohio farmer named Roscoe C. Filburn.
Filburn maintained a herd of dairy cattle,
raised poultry, and sold milk, poultry, and eggs in the open market. He planted
a small acreage of winter wheat that he fed to his chickens and cattle, ground
into flour for his family’s consumption, and saved for the following year’s
seed. Filburn did not sell a single bushel of wheat in the open market. In
1941, Filburn sowed twelve acres of wheat more than he was permitted by Second
Agricultural Adjustment Act’s regulations.[28]
This unauthorized planting yielded 239 bushels of wheat, on which the federal
government imposed a penalty of 49 cents a bushel. Filburn contested the
government’s assessment, arguing that the federal power to regulate commerce
did not extend to the production and consumption of wheat that was never
marketed.
Jackson held for the Court in Wickard that the quota on wheat
authorized by the Second Agricultural Adjustment Act was constitutional under
Article I, Section 8 of the Constitution, which permitted Congress to “regulate
Commerce…among the several States.” Jackson maintained that wheat consumed but
not marketed still had an effect upon interstate commerce and thus could be
regulated… In the early 1940s more than 20 percent of all the wheat grown in
the country never left the farm. By consuming their own grain, Filburn and
thousands of farmers like him cut the overall demand and depressed the market
price of wheat. Their actions clearly affected interstate commerce and were,
Jackson concluded, subject to federal regulation.[29]
In Wickard, Justice Jackson wrote that the
commerce power “is not confined in its exercise to the regulation of commerce
among the States,” even though this is precisely what the Constitution
says: “The Congress shall have Power…To
regulate Commerce…among the several States.”
To establish an uniform Rule of
Naturalization, and uniform Laws on the subject of Bankruptcies throughout the
United States;
Naturalization is
“the process by which a person acquires nationality after birth and becomes
entitled to the privileges of citizenship.”[30]
Bankruptcy is a
legal status in which a person or organization “is unable to pay his debts as
they are, or become, due…and is liable to be proceeded against by his
creditors.”[31] It is desirable to have a
uniform standard for bankruptcy so that a person who is unable to pay his debts
may not simply flee for protection from his creditors to another state that has
a different standard.
To coin Money, regulate the Value thereof, and
of foreign Coin, and fix the Standard of Weights and Measures;
The power to coin
money is the power to establish an official currency, which in the United
States is the Dollar. In Japan it is the Yen, in Mexico it is the Peso, in
Europe it is the Euro, etc.
The English
system of weights and measures was adopted by Congress in 1838 as the uniform
standard for the United States. The English system includes the ounce, the
pound, the foot, yard, mile, quart, gallon, etc. In 1866 Congress also
legalized the use of the metric system. It is typical to find the weights and
measurements of products sold in the United States in both the English and
Metric system.
To provide for the Punishment of
counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the exclusive
Right to their respective Writings and Discoveries;
Copyright laws
and patent laws are designed to encourage publication and invention by
guaranteeing authors and inventors the exclusive right to publish, sell, or
reproduce their works. Under current law, copyrights are good for 70 years
after the death of the author and patents are good for 17 years.
To constitute Tribunals inferior to the
supreme Court;
The only court
created by the Constitution is the Supreme Court. This clause gives Congress
the power to establish lower courts. We will consider the establishment of the
various lower courts when we discuss Article III.
To define and punish Piracies and Felonies
committed on the high Seas, and Offences against the Law of Nations;
The federal
government is better suited to deal with these matters than are state
governments. The “Law of Nations” refers to internationally recognized laws
governing the relationship of between one nation and another.
To declare War, grant Letters of Marque and
Reprisal, and make Rules concerning Captures on Land and Water;
Although the
President is the Commander-in-Chief of the United States military, he does not
have the power to declare war and commit our armed forces to battle without a
prior act of Congress. However, once Congress makes a declaration of war, the
President is ultimately responsible for how the war is to be conducted.
“Letters of Marque and Reprisal” were licenses
authorizing private individuals to arm vessels in time of war to attack and
capture enemy ships and cargo and bring them before admiralty courts for
condemnation and sale. Such a person was called a “privateer.” The profits of
such seizures would be split between the privateer and the federal government,
which would use the acquisitions to fund the war effort. Privateering differed
from piracy in that the latter was for one’s own personal profit and was done
in both wartime and peace.
To raise and support Armies, but no
Appropriation of Money to that Use shall be for a longer Term than two Years;
The primary duty
of government is to protect its citizens against those who would do them harm
by criminal behavior or foreign invasion. A police force and a judicial system
are necessary for the former and a military force for the latter.
The Constitution
authorizes Congress to “raise and
support Armies.” Experience taught the Founders that if Congress has the power
to declare war, it must also have the power to call men into active military
service. Under the Articles of Confederation Congress was authorized to declare
war, but not to raise an army. This was left to the several states. Congress
could make requests of the several states to supply men at arms, but had no
power to act independently of the states to raise the necessary money and
support for a national military. This arrangement was woefully inefficient and proved
to be detrimental to the War for Independence.
It is important
to notice the Constitution’s separation of powers with respect to the military.
The President serves as the Commander-in-Chief (Art. 2, Sec. 2), but can
neither raise troops on his own authority, nor commit them to military action
without a prior declaration of war by Congress. Furthermore, no appropriation
of money for military use can be authorized for a period of longer than two
years. By controlling the purse strings, Congress insures that the President
cannot prolong a war indefinitely, nor use the armed forces to set up a
military dictatorship.
The Supreme Court
has held that Congress’ power to “raise and support Armies” extends to imposing
a military draft, i.e., compulsory military service. This is often referred to
as “conscription.” The U.S. first used conscription at a national level during
the War Between the States. The vast majority of Union troops were volunteers. But
of the 2.1 million soldiers during war, 2% were draftees, while another 6% were
substitutes paid by draftees.
The draft was not
used again until World War I, at which time the Selective Service Act of 1917
was passed. The draft ended the following year, though young men were still
required to register for the draft. The first peacetime draft was imposed in
1940. During World War II, 50 million men between the ages of 18 and 45 were
registered, and 10 million were drafted. The draft was also used during the
Cold War and continued until 1973.
The current Selective Service System requires
young men to register for the possibility of a military draft. Registration
must take place within 30 days of their 18th birthday.
To provide and maintain a Navy;
The nation
requires a navy for the protection of our coasts, overseas trade, and the
projection of military power overseas when necessary.
To make Rules for the Government and
Regulation of the land and naval Forces;
The President
commands the military, but must do so under the rules imposed by Congress
(i.e., rules of engagement; etc.).
To provide for calling forth the Militia to
execute the Laws of the Union, suppress Insurrections and repel Invasions;
At the time of
the founding, there were very few people who believed that the United States
should keep a large standing army.[32]
It was believed that the costs of maintaining such an army would prove to be
too high and that the dangers posed to liberty too great. Instead, armies would
be raised and supported as the need arose. In times of peace, local communities
would train its citizens in the art of war so that there would be a reserve of
men prepared to be called into action. These local units were called
militias.
All
able-bodied men between the ages of eighteen and forty-five by tradition have
made up the unorganized militia. Each state has an organized militia called the
National Guard. Both men and women can become members of the National Guard.
The state governor is command in chief of the National Guard in each state.
Congress
may call the organized militia into federal service for three purposes: to execute federal laws, to suppress
insurrection, and to repel invasion.
When
called into federal service, the National Guard is under the authority of the
President. As a part of the armed forces of the United States, the National
Guard can be sent outside the boundaries of the United States.[33]
To provide for organizing, arming, and
disciplining, the Militia, and for governing such Part of them as may be
employed in the Service of the United States, reserving to the States
respectively, the Appointment of the Officers, and the Authority of training
the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases
whatsoever, over such District (not exceeding ten Miles square) as may, by
Cession of particular States, and the Acceptance of Congress, become the Seat
of the Government of the United States, and to exercise like Authority over all
Places purchased by the Consent of the Legislature of the State in which the
Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and
other needful Buildings;--And
This paragraph
authorizes Congress to have exclusive legislative control over “such
District…as may…become the Seat of the Government of the United States.” The
federal government must be located somewhere. If it is located in a particular
state, it would necessarily tend toward the advantage of that state over all
the others. In order to avoid this, the Constitution provided that a district
might be set aside by one or more states to accommodate the needs of federal
government. The states of Virginia and Maryland ceded a portion of their
respective territories for this purpose and the District of Columbia was
formed. The District included two existing settlements: Georgetown and Alexandria. Alexandria was
returned to Virginia in 1846. The city that is home to the nation’s government
was named in honor of George Washington. Congress has given substantial
self-government to the city since 1975. It now has an elected mayor, city
council, and school board, but Congress has the right to veto local legislation
and retains the general oversight of the budget.
The paragraph
also authorizes Congress to govern all federal property in the United States
and in all possessions of the United States (National Parks; federal military
installations; U.S. embassies; etc.).
To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers, and all other Powers
vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.
The Constitution
does not contain—nor was it its aim to do so—all the laws necessary for
Congress to carry out its powers. But this paragraph ensures that Congress
shall have the power to make whatever laws are necessary in order to do
whatever the Constitution authorizes it to do. However, like the General
Welfare clause and the Commerce clause, the Necessary and Proper clause has
been greatly abused as a pretext for Congress to do whatever it wishes. The
clause is not used to do this by itself, but in combination with the others.
The clause has been interpreted to give
Congress power to make laws regulating conditions which were not present at the
time the Constitution was written. Under this clause, Congress has regulated
railroads, airlines, radio and television broadcasting, telephone and telegraph
communication, and many other developments which were unforeseen at the time
the Constitution was written.[34]
Section 9.
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.
This
paragraph prohibited Congress from outlawing the importation of slaves until
the year 1808, twenty years after ratification. The provision was necessary in
order to gain support for ratification from the slaveholding states. The
provision did not require the abolition of slavery in 1808; nor did it prohibit
the importation of slaves after that date. It only prohibited Congress from
passing legislation outlawing the importation of slaves until then. In other
words, the matter of the importation of slaves was something the framers left
to a future Congress to decide. As a matter of fact, Congress passed an act in
1807 that outlawed the slave trade, and the act took effect the following year.
By the terms of this provision, however, Congress was permitted to impose a tax
on each slave imported into the United States, but not in excess of ten dollars
a head.
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.
This
paragraph guarantees a remedy against illegal arrest and confinement. A “writ”
is an order issued by a court. Habeas
corpus is short for habeas corpus ad
subjiciendum, “[that] you may have or hold the body to be subjected [to
examination].” The writ is “directed to the person detaining another, and
commanding him to produce the body of the prisoner, with the day and cause of
his caption and detention…to do, submit to, and receive whatsoever the judge or
court awarding such writ shall consider in that behalf.”[35]
“The primary function of the writ is to release from unlawful imprisonment.”[36]
Its purpose is not to determine the prisoner’s guilt or innocence, but only
whether or not he is restrained of his liberty by a due process of law. Throughout
history tyrannical rulers have often arrested and detained personal or
political opponents even when those opponents had not committed any crimes
worthy of arrest. Blackstone calls habeas
corpus “the most celebrated writ in the English law.” Justice Story refers
to it as “the great bulwark of personal liberty.”[37]
And then he adds,
But as it had often,
for frivolous reasons of state, been suspended or denied in the parent country
[England], to the grievous oppression of the subject, it is made a matter of
constitutional right [in the U.S.] in all cases, except when the public safety
may, in cases of rebellion or invasion, require it.
The
right of habeas corpus has been suspended on a number of occasions. President
Lincoln suspended it in Maryland during the Civil War in response to the threat
that the state would secede, leaving Washington, D.C. surrounded by hostile
territory.
No
Bill of Attainder or ex post facto Law shall be passed.
A bill of attainder,
in its technical sense, is an act passed by the legislature, convicting a
person of some crime, for which it inflicts upon him, without any trial, the
punishment of death. If it inflicts a milder punishment, it is usually called a
bill of pains and penalties. Such acts are in the highest degree objectionable,
and tyrannical, since they deprive the party of any regular trial by jury, and
deprive him of his life, liberty, and property, without any legal proof of his
guilt.[38]
Ex post facto
laws are laws made “after the fact.”
The phrase is here used
to designate laws to punish, as public offences, acts, which, at the time when
they were done, were lawful, or were not public crimes, or, if crimes, which
were not liable to so severe a punishment.[39]
An
example of an ex post facto law would
be a state legislature passing law prohibiting the production and sale of
tobacco products for chewing or smoking, and then arresting and punishing those
who did so prior to the passage of the law. Another example would be a state
passing legislation permitting the death penalty to be used in the case of
murder, and then executing prisoners who had committed murder prior to the law
being passed. Laws cannot be applied retroactively. They can only be applied
from the moment they took effect.
No
Capitation, or other direct, Tax shall be laid, unless in Proportion
to the Census or enumeration herein before directed to be taken.
The
word “capitation” is derived from the Latin caput,
meaning “head”. A capitation tax is a “head tax,” or a tax levied on a person.
It is a uniform, fixed amount per person taxed. “Other direct” taxes are taxes
levied directly by the federal government (e.g.,
on land or other kinds of property), as opposed to taxes on events (e.g., “duties, imports, and excises”). Whatever
capitation or other direct tax Congress might impose had to be “in Proportion
to the Census.”
In
1894 Congress passed the Income Tax Act which levied a tax on income derived
from property, but in Pollock v. Farmers’
Loan & Trust Co. (1895), the Supreme Court declared the act
unconstitutional according to the provisions of this paragraph. An income tax
was ruled to be a direct tax levied without regard to “Proportion to the
Census.” The Sixteenth Amendment, adopted in 1913, struck out the words “unless
in Proportion to the Census,” etc., and states:
The Congress shall
have power to lay and collect taxes on incomes, from whatever source derived,
without apportionment among the several States, and without regard to any
census or enumeration
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.
Nobility is a
social class possessing greater rights and privileges than other classes in
society. The rights and privileges of nobility are usually heredity, giving a
family distinct social, political, and economic advantages over others. Titles
of nobility (King, Duke, Prince, Marquis, Count, Baron, etc.) caused untold mischief in the history of the nations of
Europe and our Founders wisely wished to avoid the same troubles by preventing
the granting of such titles.
Section 10.
No
State shall enter into any Treaty, Alliance, or Confederation; grant Letters of
Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold
and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex
post facto Law, or Law impairing the Obligation of Contracts, or grant any
Title of Nobility.
No
State shall, without the Consent of the Congress, lay any Imposts or Duties on
Imports or Exports, except what may be absolutely necessary for executing it's
inspection Laws: and the net Produce of all Duties and Imposts, laid by any
State on Imports or Exports, shall be for the Use of the Treasury of the United
States; and all such Laws shall be subject to the Revision and Controul of the
Congress.
No
State shall, without the Consent of Congress, lay any Duty of Tonnage, keep
Troops, or Ships of War in time of Peace, enter into any Agreement or Compact
with another State, or with a foreign Power, or engage in War, unless actually
invaded, or in such imminent Danger as will not admit of delay.
[1] This division of the legislative branch of the federal government into two chambers is called bicameralism (Latin, bi, two + camera, chamber)
[2] Joseph Story, A Familiar Exposition of the Constitution of the United States, p. 70
[1]
Nebraska is unique. It is the only state that has only one legislative chamber.
[2]
A freeman was someone who possessed all the rights of participation in civil
government. In some of the colonies, the
status of “freeman” was granted to new settlers after a probationary period,
during which they must demonstrate good behavior. They must demonstrate that
they are law-abiding and productive members of society. In the Massachusetts
Bay Colony, one of the qualifications for becoming a freeman was being a member
in good standing of a church.
[3]
The chief
way in which colonial and state legislatures raised revenue was through levying
property taxes. It was believed that if one paid taxes, he should be permitted
to vote in order to have a say in how his tax dollars were being spent, or
whether his taxes should be increased or reduced. On the other hand, it was
believed that if a man did not pay taxes, he should not be allowed to vote and
thus have a say in how other people’s
tax dollars were to be used, or how much they should pay in taxes.
[4]
In
no state, however, were women, indentured servants, or slaves permitted to vote.
[5]
Having a child for a ruler was thought a curse (Eccles. 10:16; Isa. 3:4, 12).
[6]
Joseph Story, A Familiar Exposition of
the Constitution of the United States, p. 85-86
[7]
Joseph Story, A Familiar Exposition of
the Constitution of the United States, p. 95
[8]
Representatives and Senators, however, may run for reelection.
[9]
Seventeenth Amendment, paragraph 2
[10]
Joseph Story, A Familiar Exposition of
the Constitution of the United States, 102
[11]
Sol Bloom and Lars Johnson, The Story of
the Constitution, p. 101
[12]
Congress submitted the text of this Amendment as a part of the proposed Bill of
Rights on September 25, 1789, but did not receive the support necessary for
ratification along with the first ten Amendments, which became effective on
December 15, 1791. The 27th Amendment was ratified on May 7, 1992,
by the vote of Michigan.
[13]
Joseph Story, A Familiar Exposition of
the Constitution of the United States, p. 120
[14]
American Dictionary of the English
Language, Noah Webster, 1828
[15]
William Blackstone, Commentaries on the
Laws of England, edited by William Carey Jones, p. 2270
[16]
Black’s Law Dictionary
[17]
The U.S. does not have a national sales tax, but 46 states do. Alaska,
Delaware, New Hampshire, and Oregon are the exceptions. The sales tax in Kansas
is 6.30%. Many local communities also charge sales tax. The total sales tax in
Pratt is 8.05%. In Clearwater it is 7.30%
[18]
The federal government imposes a tax of 18.4 cents per gallon of gasoline. The
state of Kansas imposes an additional 25 cents per gallon. So then, for every
gallon of gasoline purchased in Kansas 43.4 cents is paid in federal and state
excise taxes. The taxes on diesel are even higher. The rationale for a tax on
the sale of motor fuel is to pay for the upkeep of the state and federal roadways.
The rationale for excise taxes on alcohol and tobacco products is to discourage
their purchase and use.
[19]
Recent examples include the Troubled Asset Relief Program (TARP) of 2008 and
the government takeover of General Motors.
[20]
The “general Welfare” is also mentioned in the Preamble.
[21]
Art. 1, Sec. 8, par. 3
[22]
Art. 1, Sec. 8, par. 19.
[23]
Brutus, No. VI. “Brutus” was probably Judge Robert Yates of New York.
[24]
http://johnsonsdictionaryonline.com/?p=8797
[25]
Adam Freedman, The Naked Constitution,
pp. 47-48
[26]
Adam Freedman, The Naked Constitution, p. 49
[27]
Adam Freedman, The Naked Constitution,
p. 54
[28]
The Agricultural Adjustment Act restricted agricultural production by paying
farmers not to plant part of their
land and to kill off “excess” livestock.
[29]
John W. Johnson in The Oxford Companion
to the Supreme Court of the United States, edited by Kermit L. Hall (New
York, NY: Oxford University Press,
1992), p. 930
[30] Black’s Law Dictionary
[31] Black’s Law Dictionary
[32]
A “standing army” means an army composed of full-time career soldiers who serve
in both war and peace.
[33]
Sol Bloom and Lars Johnson, The Story of
the Constitution, p. 109
[34]
Sol Bloom and Lars Johnson, The Story of
the Constitution, p. 110
[35]
William Blackstone, Commentaries on the
Laws of the Laws of England, vol. 2, p. 1676
[36] Black’s Law Dictionary, p. 638
[37]
Justice Joseph Story, A Familiar
Exposition of The Constitution of the United States, p. 186
[38] Ibid., p. 187
[39] Ibid., p. 187
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