The U.S. Constitution – Lesson #9: Powers Denied to Congress


Sorry to my loyal readers for being flaky over the last few weeks.  I have been getting burned out of talking about politics and school stuff.  Makes me think to hard about our country’s and my current situation too much.  Sorry also for not posting my Constitution lesson last week.  I had an awesome date weekend with my wife that I did not want to interrupt for anything.  But now I am back.

Today’s lesson focuses on the ninth section of article one.  It deals with the powers that are specifically denied to the U.S. Congress.  You can read it here.  But lets get started. 

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 is another location where smart readers of the Constitution will find that it talks, indirectly about slavery, specifically the slave trade into the United States.  During the Constitutional Convention, slavery was the second largest issue discussed and compromised on.  Many founders wanted to end the importation of African slaves into the U.S., but just as many did not.  The compromise they reached is this clause.  It consisted of two parts.  First, that the Congress could not prevent the states from importing slaves until 1808.  Second, that all slaves that were imported into the states would be taxed at ten dollars a piece.

The good news is at the start of the Congressional session in 1808, they banned the importation of slaves into the United States.  So the first chance they had to end that brutal practice; they did it.  The bad news is the institution of slavery still existed for another 55-57 years.

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.

The habeas corpus is one of the oldest civil liberties in the history of the world.  This right is to prevent the unlawful detainment of a person by a government; specifically it is used on prisoners.  Prisoners who file a writ of habeas corpus are asking for the reasons for their detainment.

One large issue that has come up regarding this right is the the rights of the enemy combatants being held in Guantanamo bay, Cuba.  Many have filed writs of habeas corpus, challenging why they are being held without trial.  First, the rights guaranteed in the Constitution, are there to protect the U.S. citizens from the government.  They are not there to protect illegals or our enemies.  Secondly, notice the language of the clause, “unless when in cases of rebellion or invasion the public safety may require it.”  It is safe to say that the U.S is invaded with an unknown number of terrorist would would want to harm our citizens.  Now this does not mean I am supporting abandoning this right of our citizens.  What this means is the terrorists who have been captured and are being held by the U.S. do not have a guarantee of hebeas corpus.  It is selectively being withheld on those who would be a danger to the U.S. if released; “the public safety.”

Lastly, constitutional scholars are not really sure who has the power to suspend habeas corpus: the Congress or President.  Arguments could be made for either side.  The President could have the power since it is his job to enforce the laws.  Scholars make that argument since President Lincoln suspended it during the Civil War.  I know the history behind the suspension was the imprison some of his critics but constitutionally Lincoln was in the right.  The Civil War was a time of rebellion.  Congress could also be seen as the people responsible for suspending that right since it is listed in its article.  I will leave it up to the Supreme court to decide on that interpretation. 

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

This clause deals with two specific types of laws that cannot be passed by Congress or the states (which is what we will deal with in the next lesson).  Bills of Attainder are laws that inflict punishments on a person through a law without a trial.  During the investigations of ACORN (Association of Community Organizations for Reform Now), many in Congress tried to remove their funding from the federal budget.  Why a private organization is receiving federal tax dollars is beyond my comprehension, but that is a different subject for a different time.  The Supreme Court ruled that the law defunding of ACORN was in fact a bill of attainder.  The problem with that ruling is, the Constitution primarily protects individuals from the government.  This clause also refers to criminal punishments, not civil or funding.

Ex post facto laws are laws that make punishments for crimes retroactive.  The best example from recent memory is the 90% tax on the bonuses paid to AIG executives at the start of last year.  I am not sure if the law actually passed but if it did that would be a prime example of an ex post facto law.  It is punishing today something that was fine yesterday.  A lot of states are applying new income taxes retroactively as well.  These are clear violations of the Constitution.

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

This clause of the Constitution has been amended by the 16th Amendment. Taxes were only to be apportioned in the U.S. according to the census.  I wish the progressives had never ratified that amendment.  I understand why direct taxes on individuals were prohibited by the Constitution.  You cannot boycott a tax on your income or apportioned directly to you.  That was one of the largest tools in the colonists tool box leading up to the Revolution.  They could avoid the taxes laid on them by Parliament without representation by not buying the British made goods that were taxed.  Also this made the states responsible for taxing the citizens to pay the tax bills of the federal government.  It gave local control to taxing powers.

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

This clause was the result of another key compromise during the Constitutional convention.  Congress was given the power to regulate commerce between the states in the Constitution.  In return for that power Congress could not tax exports between the states or to another country.

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.

This clause was there to prevent both the Congress from favoring any state or port in the United States.  It also prevents states from charging each other when they trade with each other.  Lastly it prevents Congress for writing regulations that favor one state over another.  This is another case of the Constitution being violated in recent memory.  During the debate on the U.S. Senate’s health care bill there were several deals made to buy votes.  One called the Corn Husker Kickback, gave Nebraska money for Medicare for the vote of Ben Nelson.  Another, called the Louisiana Purchase, gave $300 million to the state of the same name so their senator would vote for the bill.  If these were to be passed by Congress and signed by the President, there are two ways that the states can challenge these laws in the Supreme Court.

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.

All revenue spent by the U.S. government must be authorized by law.  Any time the government wants to spend money it needs to be approved by Congress and the President   This is what Senator Bunning was fighting against when he filibustered the extension of unemployment benefits.  Congress has over the last four years pass the pay-as-you-go rules twice, but they never live up to it.  This is meant to serve as a check of the legislature over the executive, since he cannot spend money without approval from Congress.  When Lt. Col. Oliver North sold weapons to Iran to fund the contras in Nicaragua, his actions violated this clause.

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.

This clause was intended to prevent an American nobility from being created in the U.S.  In recent history though we have seen this violated time and time again.  Just before his death, former senator Ted Kennedy was knighted by the Queen of England.  Being knighted is a title of nobility.  Now I am sure he had the permission of Congress, but it still is a dangerous step down a slippery slope.

The idea of limited government is one of the major themes of our history and our Constitution.  This section was intended to provide specific limits on the U.S. Congress.  Unfortunately I am seeing more and more our country forsaking the ideals and principles of limited government.  I have provided plenty of examples of the Congress overstepping this part of the Constitution or flat out ignoring it, specifically from this section of the Constitution.  Readers, I beg of you read your Constitution.  Know what it means!  The Congress and Presidents have been trampling on this document for years.  It is not just Barak Obama, Harry Reid, and Nancy Pelosi, but it goes back to Wilson, FDR and Teddy Roosevelt.  Keep the words of James Madison, Father of the Constitution, close to you heart:

I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations.

In framing a government which is to be administered by men over men you must first enable the government to control the governed; and in the next place oblige it to control itself. 

It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.

 Sound familiar?  Read!  Know your past, to understand your present, and predict the future.  Class dismissed.

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