The United States Constitution Explained: Article I - The Legislature - Full Article
Hey everyone! This one is a long one because it combines all 10 of our posts on the Legislature into one post. This way our new followers can get all of our Article I content easier and in one location. If you have not read our first post in our Constitution Explained series, check it out here – The United States Constitution Explained: The Preamble.
In summary, Article I of the Constitution sets up the bicameral (two-house) legislature that we are familiar with to this day. It defines what the houses are, how they are elected, how they interact with each other, and their respective powers. It also begins to lay some of the boundaries between the state governments and the federal government's responsibilities. The Framers specifically chose to set up the Legislature first because the country was most familiar with the idea of Congress from the Articles of Confederation, and they were highly concerned with representation, especially in decisions on taxes.
Section 1 - Clause One
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.
The first section of Article I is one of the shortest of any of the sections. However, it begins to show the stark difference between the Constitution and the Articles of Confederation. The Articles set up a unicameral (one house) legislature that was totally made up of states delegates from two to seven per state, and each state received one vote that the delegates had to reach a consensus on.
The Constitution's bi-cameral system was meant to mimic and then perfect the bi-cameral parliamentary system that governed Great Britain. British Parliament was made up of the House of Lords and the House of Commons. The House of Lords comprises those with titles and lands reminiscent of the feudal system in Europe. They were the aristocracy and represented the land and titled power of great Britain. The Senate is the allegory to this House because it is meant to be comprised of older, more experienced statesmen rather than political amateurs. The House of Commons was set up to represent the common people such that they would have a voice (at the time a minimal voice) in parliament. This is the inspiration for the House of Representatives. As you will see, unlike in Britain, the House was given very specific powers, specifically around taxation. This was done so that the federal government's level closest to the individuals could represent them to decide on taxes and spending.
For those of us who read Part 1, Article 1 may seem like it will be a cake-walk. However, the section we will cover today is surrounded by some of the fiercest disinformation and intentional misreadings of any part of the Constitution. The ten-thousand-foot view version of this section is that there will be a House of Representatives consisting of citizens who are elected by the people every two years. Each state will receive a certain number of these based on the population breakdown of each state. This one is a little too large to gain much insight by looking at it as a whole first so let's break it down into its individual clauses.
Section 2 – Clause One
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.
This clause is a little convoluted to read, as all legal documents are to people who aren't lawyers, but it is very straightforward in meaning. First, It sets up the two-year terms for Representatives. This was to ensure that they had to be responsive to their electorate and could be changed out frequently so that the district was best represented. Second, it states explicitly that the People will elect the representatives. As we will discuss in Section 3, this differs drastically from how Senators were originally placed in office. Lastly, the clause decrees that anyone eligible to vote for representation in the most numerous branch of the legislature in their State also has the right to vote for their United States Representative. Basically, this passed the power to determine voting eligibility to each State individually. The hope with this section was that the States would expand voting rights separately based on their citizens' morals and ideals. The secondary hope was the pressure of losing citizens to another State where they felt their voice could be heard more readily would encourage other States to follow without needing federal regulation to mandate it. For those of us who are at least causal scholars of American History, we know that this was not effective, and multiple Constitutional Amendments and federal laws were needed to expand the right to vote.
Section 2 – Clause Two
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.
To effectively represent the people of a particular state, it is imperative that you are from that state to go home and work with your constituents. In addition, you are better positioned to understand their wants and needs because you are from the same area. One must be a long term citizen to be a Representative because he or she is part of decisions involving tariffs, trade, foreign policy, and declarations of war. There must be no one who is even perceived as partial to another home nation to make our government effective and genuinely sovereign. Also, there needed to be a minimum age, so they set twenty-five so that Representatives would be out on their own, supporting themselves, and mature enough to make decisions that affect the nation.
Section 2 – Clause Three
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.
Ok, so this is the really controversial section. First, I will explain the text, second, I will provide context around the issue from the period, and lastly, I will discuss the current media disinformation surrounding this clause.
Let's dive in! This clause is broken up into three sentences.
The first sentence aims to provide that taxes and representation will be divided amongst the States by their population. To best represent this, it was compromised that they would count all free People, including indentured servants, excluding the American Indians who belonged to their own nations instead of the United States, and including three-fifths of all other People. The phrase "other Persons" was mainly a way of including slaves. Persons and People are specifically capitalized to show that the framers recognized the inherent worth of the people living in the country endowed upon them by their Creator and continued recognition that all government power comes from the People.
While the main focus most people place on this clause is around representation, the taxation piece became a major issue in the late 19th century when the National Government tried to institute an income tax. Multiple Supreme Court cases struck down the Constitutionality of an income tax because it did not apply evenly to the States according to their population. The taxation portion of this section was eventually Amended in 1913.
Now that we know who will be counted, the second sentence determined how the federal government would do the counting. To ensure that actual population numbers governed the people after the first Presidential election cycle, they said that the first Census must happen within three years of the Congress's meeting to have it done before a Presidential election needed to happen. Actually, it only took one year for Congress to make the laws that governed the Census and Thomas Jefferson to act upon those as Secretary of State and have the first Census in 1790. This sentence also gives Congress the power to change the number of seats as time progresses to best represent the country.
The last sentence provides the minimum number of people needed per representative and ensures that each state will have at least one representative. This was a safeguard put in place so that Rhode Island and Providence Plantation (yes, that was its full name until a referendum that happened just this year in 2020!) would have some representation but not have an unfair amount of representation. Finally, the last part of the final sentence is where the Framers take their best-educated guess at each State's populations and give the initial numbers of representatives for the first election after the Constitution was ratified.
Ok, so now that we know what the text says, let's discuss where the controversy comes in. "and including three-fifths of all other People" The discussions around this phrase were one of the sticking points that almost sunk the hopes for a new US Constitution. To best lay it out, let's walk through the two main plans for setting up the Legislative branch.
While the Virginia Plan and the New Jersey plan expanded much past the legislature's description, to keep things to the point at hand, I am only going to focus on the legislative and representation sections of these plans and the Compromise. We will focus an entire later post on this Compromise in more detail.
The Virginia Plan
The Virginia Plan, proposed by James Madison, called for a bi-cameral legislature like we have today. The difference between our current legislature and this plan is it provided that the numbers of representatives of both houses to be proportional to the total population of each State.
The New Jersey Plan
After the Virginia Plan was proposed, delegates from New Jersey presented a plan that better represented the smaller States. They called for maintaining the unicameral legislature with equal, one-vote, representation for each State that the Articles of Confederation created.
The Connecticut Compromise
Eventually, after much deliberation, the delegates from Connecticut proposed a compromise between the two plans. This Compromise that was adopted became the basis for how our Legislature is constructed today. They called for a lower house with short terms whose numbers were decided by States' population and an upper house with longer terms in office where the States got equal representation.
The Three-Fifths Compromise
Now that they had determined that each State's population would play a role, they needed to agree on who to count. The delegates from Virginia and other large States wanted all human beings counted, including slaves. This would give these States massive influence in Congress, and therefore, they could gain the most power and ensure slavery, which was the basis for their economy, existed for a very long time. The delegates from New Jersey and other smaller States wanted no slaves to be counted, taking some of the power away from the larger states and bringing them closer to equal representation in the House of Representatives. Their main argument was that you cannot, at the same time, consider these people property and then count those who will not be represented the same as free people. For both sides, the other's plan was something they would never sign because it left the power scales unbalanced. After much debate from both sides, they reached an imperfect compromise that would count three-fifths of all people besides free citizens in the population for the purpose of determining representation.
Today, people are consistently using this Compromise as the basis for arguments that The United States has been systemically racist since it's inception. Their opinion is that the Framers specifically wanted to state that black people were less than human and, therefore, only counted as three-fifths of a person. However, when you break this down in the context it was written, that argument doesn't make much sense. Following this same logic, the larger slaveholding states who considered these people property also believed they were equally human and should each be counted in the total population. On the flip side, still following the same logic, smaller states, who wanted to delegitimize and shrink the impact of slavery, and abolitionists, who wished to eradicate slavery, would have believed that slaves should not count as people at all. This logic is absolutely ludicrous because if the abolitionists thought that the slaves were less than human, why would they want slavery eradicated? This is a bad-faith effort to undermine the founding of the nation for political gain.
We here at March Forth will be the first to tell you that the founders, just like you and me, are all less than perfect. We firmly believe that all of mankind are imperfect beings. Obviously, the ideal solution would have been for the Constitution to outlaw slavery and for the larger states to want to join the new nation so eagerly that they would radically change their economies and ways of life to do so. However, in the imperfect world that we live in, this solution was impossible.
As Madison describes in Federalist 10, preserving and the Union created by the Articles of Confederation in the United States Constitution was of paramount importance. We saw this theory proven correct during the American Civil War. Because the Framers knew that threats caused by separate factions on the same soil pose a much graver threat to American lives than the vast majority of foreign conflicts, they had to make compromises to preserve the Union. This Compromise allowed them to do so while also laying the foundations to fight against the moral evil of slavery.
Both bad-faith attacks and good-faith misunderstandings of this portion of the Constitution intensify America's societal and racial divide. We started this blog to attempt, through education, to heal this divide and help people understand that we can celebrate the Founders and Framers for what they worked to achieve and work to understand their logic while still criticizing them where it is necessary. Our belief is that a group of imperfect men sat down and made the promise of a nation that would recognize that all of mankind was created equal in the eyes of their Creator. Because these men were imperfect and, in turn, we are imperfect, we know that the nation has not always lived up to this promise but has continued to evolve to better fully represent this idea.
Section 2 – Clause Four
When vacancies happen in the representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
Now that I am off of my soapbox let's continue on. The issue of vacancies in the House of Representatives could easily be overlooked because the terms are only two years in length. If, for example, a Representative dies, resigns, or is removed eighteen months in, it would be silly to worry about filling that vacancy for such a short time. However, if the same vacancy happened one month in, it would leave a group of citizens unrepresented for almost an entire term. Clause Four was added to empower the States to have special elections to ensure these seats stay filled, and all citizens are represented.
Section 2 – Clause Five
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Once again with the changes to the English language! If you read the Preamble post, then you know how frustrated I get with spelling changes, and how I feel for non native English speakers because who would think that words would consistently change like this! I think I am going to start spelling choose, "chuse" in my every day writings just to confuse people.
Anyway, this clause gives the House the power to determine how its own operations run and who will lead the House as Speaker. Also, it provides the House with the sole power of Impeachment. While Impeachment is not defined here, Dictionary.com defines it as "the presentation of formal charges against a public official by the lower house, trial to be before the upper house." The criteria for impeaching a sitting official is specifically not given here so that the House has broad authority to fight corruption. Convictions for charges presented during an Impeachment have a higher standard that we will discuss in our next post on Section 3 and can only be for high crimes and misdemeanors.
Whew… We survived Section 2. Now that we have discussed the Lower house with all of its population counting controversies, this section should feel as easy as pie. As we briefly discussed in Article 1 Part One, the Senate was based on the British Parliament's upper house. Like the house of lords representing the sovereignty of their rule over the land they owned, the Senate was designed to represent the individual State governments at the federal level.
Section 3 – Clause One
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.
The Senate was something that most states were familiar with because its structure is similar to the Congress that existed under the Articles of Confederation. However, while each state has equal representation, they each have two votes instead of one. This is the largest change from the Articles' Congress to the Senate. Having two votes for each state instead of one breaks down the monolithic nature of voting. It allows each Senator to vote for what he or she believes is the best for her State without necessarily having to agree with their counterpart. It also allows Senators to cast their own vote instead of submitting to a vote that doesn't match his or her beliefs because the other delegates had a majority.
Government turnover is an essential part of representative democracy. However, running elections for Senators every two years or every four years or even half of them every eight years leaves too much room for rapid change of membership to meet the goals of the Senate. The Framers chose every six years because that allowed them (as described below) to elect one-third of the Senate every two years. This will enable it to be the slowest body to shift to the country's political whims and to be a useful deliberative check against rapid change that may not have a broad consensus regardless of other branches' political ambitions.
As to the choosing of senators, I know many of you are thinking, "Hey, wait I, am like 95% sure I voted for a Senator in the last election, and there is a runoff election for a Senate seat happening in Georgia." In our first post, I talked briefly about the 17th amendment's change to the direct election of Senators and how that changed the individual's relationship to the national government. I want to go deeper, but for the sake of keeping the same pattern of interpreting the text as it was initially written, I will wait until we reach the 17th amendment.
Section 3 – Clause Two
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; and 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.
As we discussed above, senators will swap out every six years instead of the every two that Representatives swap out or the every four that Presidents swap out. Once you have a rotation figured out, it is no issue. Just elect/appoint a new senator into the seat that is up for grabs every 6 years, and you are good to go. When everyone is starting their first term at the same time, however, it defeats the purpose of the 6-year terms to have the whole senate change out at once. As unfair as it was for the first group of senators to draw straws to figure out how long their first term would be, it was just part of the price to be paid to capture the goals for all future Senators' terms.
As we talked about with Representatives, it is essential to define what should happen when vacancies occur. For anyone who casually studies politics today, you know it is not uncommon for Senators, especially to be older in age, so a vacancy by death becomes a genuine possibility. Also, committing 6 years to serve your state may become impossible for people because of issues in their personal lives. For example, they have children, and a spouse passes, so they need to be more involved at home, or they get expelled by congress (which will explain more about in our post on section five), or any other myriad of reasons someone may need to resign. In this case, they give the state executive the power to appoint a new Senator until the legislature meets. This ensures there is no reason that a state remains underrepresented for a significant period of time. It is important to note that Senators who are appointed rather than elected are still Senators and bear all of the same rights and responsibilities.
Section 3 – Clause Three
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.
As we talked about with the Representatives, it makes no sense for someone to represent a state that they do not currently reside in because they could be easily swayed to support their home state over the one they were chosen to represent. They add a higher age limit to this house because the goal is to get people involved in politics or have hard-earned wisdom through their years of working. The average life expectancy in 1787 for white males in The United States was only around forty years. So at thirty, on average, you would be somewhere between 50 and 75 percent of the way through your life. They expect that those people would have the necessary wisdom and influence to make wise decisions in the Senate. Lastly, they increase the amount of time as an American Citizen from 7 years to 9 years. This correlates to the age change in that they want most of the years where you gained this hard-won wisdom to have happened in America so that you are concerned only with America's interests.
Section 3 – Clause Four
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
Per the Senate.gov website,
"The Constitution is quite unspecific in its definition of the vice president's role as presiding officer, beyond casting tie-breaking votes. John Adams, the first vice president, attempted to influence the Senate's decisions on legislation during his first term, but eventually came to see the presiding officer as a neutral figure. That role has remained constant since that time. Adams cast more tie-breaking votes (29) than has any vice president who succeeded him. By contrast, during his eight years of service as vice president, George H.W. Bush cast only eight tie-breaking votes, Al Gore broke four ties, and Vice President Dick Cheney voted eight times to break ties. The vice president is not at liberty to address the Senate, except by unanimous consent. Nor should any senator speak while presiding, other than to make necessary rulings and announcements or to maintain order."
Using this to help frame our understanding, we can better break down the President of the Senate's role and why it was given to the Vice President.
Whenever you have a body dealing with issues that can have heated and consistent debate, you need someone to make sure that the rules and procedures that the body has agreed to are followed. Also, as with any voting body with an even number of members when fully assembled and votes by a simple majority, ties will happen from time to time. Rather than wait for the first tie and assume that the likelihood of it would be small, the Framers went ahead and provided for this case. This is the role of the President of the Senate.
Without the President of the Senate, deciding ties within an evenly membered body would be an impossible task to complete fairly. While there were not defined political parties with as much power as they do today, they still needed to worry about allegiances to home states or future political ambitions. Giving any member the ability to vote twice to resolve a tie would potentially give one state 50% more representation on that particular matter.
Back then, the Vice President had little defined responsibility on the executive side other than working with the President and cabinet, so they thought managing the upper house of the legislature would be a suitable place to put him. Given the close relationship the Vice President would have to the President, it makes sense to make him or her the President of the Senate because he or she would most likely cast their tie-breaking vote in the direction that the President would lean. This would essentially mean that in a tie, you could handle the presidential veto process in house rather than going through the whole process. Basically, it would be similar to the Senate asking the President, "Hey man, can't decide what to do with this bill. If we pass it, are you going to sign it, or should we just go back to the drawing board now?"
Fun Fact: It was a good idea to handle the really complex issue of ties early because the first tie happened about four and a half months after the Constitution was ratified!
Section 3 – Clause Five
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.
As we talked about regarding Representatives and Senators, the Framers wanted to have plans on if, when, and how to replace key government pieces. In this case, they wanted to make sure there was someone to preside over the Senate and ensure that rules and regulations are followed no matter whether the Vice President was available to preside. It is important to note that, unlike when the Vice President presides, the President pro tempore is a duly elected Senate member and can speak on any issue. Also, they do not get to break a tie. If a tie happens when no Vice President presides as the President of the Senate, the motion fails and must be put through the process again.
Section 3 – Clause Six
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 we talked about earlier, rather than a criminal indictment, impeachment is the way to bring formal charges against someone in public office. Once these charges are levied by the House of Representatives, it is the Senate's job to try them. Because impeachments are separate and unique job responsibilities of senators alone, the Constitution states that they must have a different oath or affirmation to participate. The Senate rules require each Senator to swear (or affirm) that he or she will "do impartial justice according to the Constitution and laws." The oath was initially adopted before proceedings in the first impeachment (Senator Blount in 1798) and has remained mostly unchanged since.
To eliminate any potential political or ambition related conflicts of interest, they purposely choose the Chief Justice to preside when the President is tried in an impeachment instead of the Vice President. While it has never happened, it can be assumed that in the case that Vice President is impeached, the President pro tempore would preside. This is because, in any absence of the Vice President, that is who would preside over all other senate matters. As a check on the potential for strong political affiliations (wow, they nailed that one on the head, didn't they), they wanted a supermajority to convict in impeachment trials rather than the simple majority that the House of Representatives needs to levy the charges.
Section 3 – Clause Seven
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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Just because you are in public office does not mean that you are above the law, nor do you lose your rights as an American Citizen to a trial by a jury of your peers. As such, impeachment trials have no ability to sentence a person to jail, a fine, or any other typical punishment because they are held in the Senate, not a court of law. Impeachment convictions carry a different set of penalties: removal from office and the inability to hold a government position again.
Next, it explicitly states that a person who is impeached and convicted can still be prosecuted in the normal legal system. Later on, in Article II Section 4, the Constitution states that impeachment convictions can only be for treason, bribery, and other high crimes and misdemeanors. All of these carry stiff legal penalties, and the individuals involved must be thoroughly investigated, tried, and, if convicted, punished.
For my Bill of Rights experts in the crowd, this is not akin to double-jeopardy, the idea that you cannot be tried twice for the same crime, because the first trial is in the Senate and is, therefore, a political process rather than a criminal one.
Woo Hoo! Back to a short, straight forward section! After our last two heavy sections that set up the two houses of Congress, I would like to personally thank the Framers for giving us three short and easy to understand sections in a row before moving on to how laws are made and specific powers of government. This section needs a lot less set up than the previous ones, so let's just dive right in.
Section 4 – Clause One
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.
Unlike today, communication was slow, and the time it took to choose electors for President and have them carry their votes to New York and later DC is better measured with a calendar than a watch. For this reason, the Framers thought it best to let the states handle elections since those elected would be representing them and their people. However, the Framers thought it best that since the elections could have nationwide impacts, Congress should have the power to make legislation to provide guidelines for how elections are handled without going through the amendment process. For some elections, especially in a Presidential election, there may be issues if votes do not come in by a specific time.
This has been an important clause that has led to the Election Day we are all familiar with today. The first law that governed when and how elections should occur was passed before the second Presidential Election in 1792. It stated that states had a thirty-four-day window ending on the first Wednesday in December in which the electors could meet, vote, and bring their votes to the President of the Senate.
Up until the invention of the telegraph in 1844, information took a long time to spread throughout the States, so a wide window was needed and posed no real threat to election integrity. After 1844, however, Congress needed to limit the states to the same day so that results coming in from one State would have as little impact as possible on the other States' votes. For this reason, in 1845, Congress chose the first Tuesday in November. This was because it would always be 29 days from the first Wednesday in December, giving electors plenty of time to travel to DC to submit their votes to the President of the Senate and fitting within the original thirty-four-day window. Tuesday was chosen so that citizens could go to church on Sunday, travel on Monday to wherever the election was being held (usually the county capital), and farmers to be back in time to sell their produce in the market on Wednesday.
For a long time, states varied drastically on the method for choosing electors. Some decided to do it within the State Legislatures, while others allowed it to come from a popular vote within the state. By the middle of the 19th century, however, most states adopted some form of a popular vote for selecting electors, and currently, all states use some form of a popular vote.
Given the current political climate, it is important to remember that if a State Legislature does have the legal right to vote to change how the electors are selected and select them the Legislature. Some reasons they might do this include that they do not agree with the popular vote or believe the election to be fraudulent or suspect. It is doubtful that we will ever see this happen because unless there are extreme circumstances that cast doubt on the election, it would be political suicide for the state legislatures to deviate from the standard procedures they have established.
Another important note before we move on because I have touched on it several times is that the Framers explicitly state that Congress cannot pass a law to change how Senators are elected. This shows how vehemently they believed that Senators represent the States and not the people. The Framers believed, as do I that the power to elect Senators should lie directly with the State Legislatures rather than the people. As we know, the later States and Congress disagreed and amended this section, but I still wanted to throw my two cents in.
Section 4 – Clause Two
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.
Back in the day, political office was often not the politician's sole job. They had to be several days ride away from their family for months at a time, so it was essential to choose a date that best fits what people could do. They wanted Congress to meet every year because Representatives only get two-year terms, and they need as much of that in the Capital as possible to be effective in their roles. They chose the first Monday in December so that it was after the harvest season so that farmers or plantation owners who were politicians could finish their busy season before going off to serve in the Senate or the House of Representatives. To best account for any future needs or changes to who is serving in Congress, they allowed Congress to make changes without the need for an amendment. However, when Congress wanted to change when and how the President is elected, they went ahead and altered this date as well.
Now that we have a House of Representatives, a Senate and know how they are elected, we need to figure out how they keep them honest and keep them working for us. Section 5, as a whole, outlines how the Houses of Congress regulate their own member's actions and each other's attendance.
Section 5 – Clause One
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.
To begin this section, they explicitly gave Congress not only the power but the responsibility to be the Judge of its own elections. This gives them alone the ability to subpoena witnesses and evidence to investigate claims of fraud and whether or not the elected candidates meet the age, citizenship, and location requirements provided in Sections 2 and 3.
Second, they state that each house can conduct business when a majority of its members are present. They also give a smaller number to compel absent members' attendance and pass rules to determine penalties for people who do not show.
The second part of this clause may seem small and really procedural, but it holds significant value. For a group of men so concerned with representation (equal or proportional depending on the house), you would think that they want all members present for any work to get done.
While this is a great ideal, it is not practicable. Before we begin to talk about the political reasons why only a majority needs to be present, let's look at the human reasons. Death, travel time, family emergency, or even resignation can leave openings, and these take time to resolve either by the politician themselves or by the state legislature. Past the human impacts, there are also several political reasons why this idea of a quorum is essential. Let's say that a particular bill has 99 percent approval in the Senate, and only one Senator is holding out on voting yes. If all members were required to be present to vote, that bill would never get voted on because that one member could just say I'm not coming in. Let's even take a less extreme example. Let's say a bill has fifty-one percent of the House of Representatives agreeing, so just barely passing. If even a three-fourths or two-thirds majority needed to be present to allow a vote, the bill would never get voted on because the forty-nine percent could make the house unable to function by just not showing up.
After hearing all of this, you might ask, "Well, why even have a quorum at all? Just either show up and vote or miss out?"
This goes back to the human reasons we spoke about at first. Let's say a majority of one house could not get to the capitol building in DC because a major snowstorm shut down all the roads into town. We wouldn't want the few people who were there deciding everything, would we? This is why the majority quorum was instituted. That way, as long as most of the body was there, business can continue. In most cases, out of respect, they still wait for a vast majority, but that is a niceity, not a requirement.
Lastly, before we move on with this section, the Framers wanted to limit the power of a majority to walk out and not allow a vote to happen instead of having to go on the record and vote no. Even if it would not change the outcome of a vote and it was just for appearance's sake, they needed a way to ensure that representatives and senators did their job and voted. For this reason, Congress was given the power to make rules to compel attendance at certain times and to apply whatever penalties were necessary to do so.
Section 5 – Clause Two
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.
The first part of this clause is to give the congress powers to pass rules to make its sessions orderly—basically, things like taking speaking time away from those who are not contributing to a positive discourse.
The second part is really interesting. It gives Congress the power to expel a member without impeaching them, provided that two-thirds agree. This clause has been considered in several instances but has not been used since 1862 in the Senate and only twice since then in the House.
From my brief research, it can be determined that the two times the House has expelled someone since 1862 could have been better handled by impeachment. However, I believe they wanted the criminal court to address those trials. In each of the last two times this clause was invoked in the Senate, it was to remove Senators from southern States during the Civil War.
On our first episode of the Publius Podcast, Matt talks at length about the founding fathers' treason against Britain and what would have happened to them had we lost the Revolutionary war. Here at March Forth, treason is not a word we take lightly, and one of the reasons we started this blog was to combat treasonous or treason-adjacent statements made in the media and on the internet today. I say this because I want to make our stance clear as we work through these removals. The initial call to action was for the House to impeach these Senators and Representatives and the Senate to try them. Several Senators objected, arguing that they should not be impeached because they did not necessarily break the law of their own free will; they were doing their job and following their States' wishes. Those who supported impeachment believed that by not working against their States to bring them back into the Union, they were a part of the ongoing conspiracy against the American government and, therefore, guilty of treason and should be impeached. In the end, the parties agreed on expulsion because it did not come with the same formalities like the need for due process or penalties like the inability to hold federal office in the future that came with an impeachment trial but still succeeded in the goal of removing them from the caucus.
As for the treason penalties, don't worry. They didn't get off scot-free. The inability to serve in government was later applied with the ratification of the 14th amendment, but we will talk more about that when we get there.
Section 5 – Clause Three
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.
It is important to remember that Congress members and other Elected offices are public servants there to vote for the interests of those they represent. Given that, it is quintessential to have a journal to know which motions and bills were voted on. This way, Congress members can be held accountable to their citizens. Obviously this has to be limited, not all matters can be on the public record, especially those involving national security or foreign intelligence. If the American people knew all of them, so too would our enemies. To fully hold each other accountable and for the citizens to hold those who represent them accountable, a low bar was given for when yeas and nays should be recorded. This way, a small minority who may have lost the vote on a particular issue can have the receipts to show their constituents that they have represented them well.
Section 5 – Clause Four
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.
As we talked about above, we know that absence is a powerful way to control how votes happen on particular bills, and the Framers wanted to mitigate this risk. As we will discuss in Section 7, both Houses of Congress must pass each bill for it to become a law. While Clause 1 of this Section gives the individual houses the power to compel their members, Clause 4 provides each House with the ability to force the other House to be in attendance during a session so they can vote on an issue and not hold the Legislature hostage.
So far, we have talked about responsibilities and what Congress members can do, can’t do, should do, and shouldn’t do. Now let’s talk about some of the benefits of being a Congressman or Congresswoman that might make all those responsibilities worth it – and a few caveats that come with them.
Section 6 – Clause One
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.
Especially in 1789, and even now, traveling back and forth to DC often is expensive. In addition, it is hard (basically impossible) to find a job where you can be away so often and for so long as the sessions in Congress are and still get paid. Given these two problems, it would seem like only rich people and people with passive income could be in Congress. Insert Section 6. This country was not built by wealthy people alone. Sure, a lot of the Founding Fathers had money, but quite a few of them came from nothing or fought alongside people who had nothing in the Revolution and wanted people in similar situations to have a chance to lead their country. For this to be a possibility for many people, it had to come with a paycheck.
The second part of this clause looks a little sketchy on its face. To most people, it reads: as long as they aren't selling out the country to its enemies, committing some pretty serious crimes, or rioting, then they are above the law. What it actually means is a little bit different and has much less use today. In the early part of American History, many civil suits resulted in arrest to ensure that the person would arrive instead of a typical subpoena like we see today. Well, this would be a pretty easy way to keep someone you disagree with from going to Congress, right? Have a bunch of people sue them consistently, so they keep getting arrested and cannot make it to the session, and problem solved! This clause was meant to stop this. The phrase treason, felony, or breach of the peace is intended to exclude all criminal offenses from the privilege.
The last part of this clause is a doozy that has had many legal challenges and is a premise that has been fought over all the way back to the founding of the British Parliament. For our purposes, we will keep to the high-level description that Congress members cannot be held Criminally or Civilly liable for how they choose to debate discuss issues related to legislation. This gives them the full independence needed to have an effective legislature. If you are really curious and want to know more about this nuanced idea, send me an email or put your question in the chat box, and I will be happy to provide resources to help you better understand it.
Section 6 – Clause Two
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.
This is mainly protection from Senators and Representatives using their offices for profit.
For example, The President does not like his Secretary of State, and he announces he is appointing me to Secretary of State, and I am waiting to be confirmed by the Senate. In the same week, a proposal comes up to double the salary of the Secretary of State.
For another example, let's assume I am an expert on cloud web architecture. We just voted earlier in the session on the creation of a new Department of Government Web Architecture.
In these two cases I would have just voted on and proposed my own job switch or salary increase in the middle of my term! In both cases, there is no way that I can completely disavow any bias in my decision making for voting yes, voting no, or not voting (and therefore basically voting no) on any of these proposals.
This Clause was not heavily debated at the convention, and therefore has a significant loophole that the founders missed. You can be appointed to one of these positions after your term has ended. So, in theory, you could propose and vote on a salary change for an office and be appointed to it when your term ends. This clause has not been litigated very much, and there have been no amendments to this effect, so we can assume this is a very rare case.
The last piece of this clause and this section is that you cannot hold an Office under the United States and be a member of either House. The phrase "Office under the United States" generally refers to Offices under the Executive Branch or any United States agency. This ensures no conflict of interest where someone working for the Executive Branch is also double-dipping and working in the Legislature to push a certain angle from the Executive.
FINALLY! After 6 Sections of who Congress is, how they operate, why they exist, and when they are elected and meet, we get to the meat of WHAT THEY ACTUALLY DO – Legislate. Section 7 is probably one of the main things you remember from government class in school. It is all about how a bill becomes a law.
Section 7 – Clause One
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.
The first restriction that the Constitution puts on the process of making laws is that all bills for raising revenue (aka taxes) must come from the Representatives. Do you remember that thing the Founding Fathers cared about a good bit? Taxation without Representation? To avoid that, they wanted all bills that will create, extend, or alter taxes to begin in the House of Representatives so that the people’s representatives are making the decisions on any new taxes and not just what is best for the States themselves. This does not apply to every single instance of a tax, but only to new taxes meant to generally support the government. Everything else can be proposed on a bill by either house as an amendment to a bill.
Section 7 – Clause Two
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. 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. 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.
Ok, so here is the part we all remember. When one chamber creates a bill, both houses must approve, and then it has to be approved and signed by the President, and boom, you have a law. If the President disagrees, he can choose to veto (or deny) the bill within 10 days. If he does, it goes back to both houses to be voted on again. If it passes a vote with a 2/3 majority (67 votes in Senate, 290 in the House) of both Houses without being amended, then we have a new law! If the 10 days passes (minus Sundays) and the President does not respond to the bill, and Congress is in session, we have a new law!
Any other outcome and the bill must be reintroduced and amended, and then the process will start again. There is also an interesting tidbit that differs in the veto review process from the initial voting process. The names of who voted yea or nay (for or against the bill) are entered into the journal regardless of whether or not twenty-percent of the respective house votes for them to be. This is because this process is of a higher nature, and it checks the Executive’s veto power.
A critical catch on the veto power is that if the President decides to veto a bill, he or she vetos it in its entirety. Let’s say there is a spending bill that says we will spend x amount on the military, x amount on Social Security, x amount on infrastructure, and a huge amount on cheese for a 75-foot cheese statue of Alexander Hamilton. Suppose the President hates our Founding Fathers and thinks that we have other priorities than spending money on an Alexander Hamilton statue. In that case, he has to veto the spending on military, infrastructure, and Social Security to veto the 75-foot cheese statue. While this is a ridiculous example intended to highlight the issue, it does expose a serious current political problem and an unintended political check on the President’s power.
The 2021 National Defense Authorization Act passed by the House in December 2020 is over 4500 pages long. Over the years, Congress has learned to expertly use omnibus (or all-encompassing) bills to slide in priorities the President disagrees with. These bills make it one hard for him or her to find them, and two politically impossible to veto because of the other crises it will cause by not funding portions of the military, for example.
As you know, it is exceedingly rare that I will use this platform to call you to any political action. However, finding a way to limit the amount of actions bills can take is something I urge you to reach out to your US Senators and US Representatives about. Omnibus bills hurt everyone involved and are merely political cudgels used to limit the President's constitutionally given power.
Ok, now back off my political soapbox. I know that this can be a confusing process and all I have done so far is offer a really long block of text to explain a shorter block of text. For my visual learners in the crowd, here is a helpful flowchart I created to hopefully make the process make a bit more sense.
Section 7 – Clause Three
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.
If you have made it this far reading along with me, I am sure you are curious about the difference between Clause 3 and Clause 2 because they look pretty dang similar on their face. There has been some discussion on why this clause was included. The general consensus is that the Framers did not want Congress able to pass an Order or Resolution that is not a bill and have it able to be enacted like a law without the same process of a bill being followed.
Basically, the word necessary is meant to imply that any Order Resolution or Vote that will carry with it the force of Law must be reviewed by the President. Any other Votes, Orders, or Resolutions such as those that happen during the process of lawmaking are generally thought to be exempt from this clause.
If you have followed along with us so far, you know that each Section of Article I so far has built upon the last in describing the National Government's Legislative branch. The next three sections talk more about the specific powers that Congress has when operating through that structure.
Section 8 – Clause One
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;
Let’s think back all the way back to our Preamble Post. If you recall, the Constitutional Convention was called partially because two motions to allow the National Government under the Articles of Confederation failed and left the nation with no money to do anything of value. Given that a Constitution is a contract signed between independent states to agree to a particular government structure, the Framers explicitly gave Congress the power to levy taxes so that the government has money to spend.
Initially, Congress was only able to levy taxes that were equal to each state. If they wanted to tax tea imports, for example, they could not tax tea imported into Georgia differently than tea imported into New York. Not that I would recommend taxing tea in general because that never ends well. Just ask Boston. Anyone over the age of 15 who has worked their first job may be wondering how Income taxes are uniform throughout the country when they aren’t even uniform from citizen to citizen. This was a hotly debated issue several times in history, and income taxes were struck down as unconstitutional several times. As we talked about in our first ever post, this was later solved with the passage of the sixteenth amendment.
Section 8 – Clause Two
To borrow money on the credit of the United States;
Taxes are like the government’s salary. It is what they are paid from us for what they do for us. Like your job, it may not always provide the right amount of cash at the right time for big purchases. For example, let's say you want to buy a house. You get a mortgage and pay it off over time. The Legislature has the same power to borrow money from banks or other nations to pay for large capital expenditures like new warships or massive infrastructure upgrades.
Theoretically, the government should be operating at least a balanced budget where all of the expenses plus the minimums on the debts are paid if not a surplus so the debt can be paid back faster. This, however, is not currently the case.
While the Constitution is usually great at limiting the government's powers to precisely what they need to do, the Framers made a crucial flaw with this clause. No part of the Constitution restrains this power to borrow credit to a specific limit. This means the government can continue to borrow and borrow and borrow as long as someone is willing to lend it money. This is a crucial flaw because it gives more and more influence to outside parties over American affairs. After all, they own our debt. For example, your credit card has a limit. This limit serves two purposes – to limit your risk of not being able to pay it back and the credit card company’s risk of it not being paid back.
Today’s regulatory and agency and program-driven federal spending model has taken advantage of this clause and decided that the government can spend more than it makes every year like an unlimited credit card rather than thinking of the United States credit like a mortgage used for capital expenditures.
Section 8 – Clause Three
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
So we have talked about the Constitution being a contract between independent States before. In that sense, the National Government’s role is to be a singular body meant to maintain these States' relationships with each other and be the central location for their collective relationship to the world at large. Given that definition of the National Government, it is appropriate that they alone can regulate the trade between these different parties. At the foreign level, this makes sure that no one State can get a benefit over another by creating their own trade agreements with another country or tribe. At the inter-state level, this ensures that no one state can overrun another by changing how goods and services flow across state borders.
Over time, the court has interpreted this more broadly to include that Congress had the authority to regulate local business activity, as long as that activity could become part of a continuous “current” of commerce that involved the goods and services moving between states.
This clause has been debated consistently over time and has many Supreme Court cases that are really interesting, to me but maybe not to our general readership. If you would like to know more, please feel free to reach out, and I can get you some useful resources to study this clause in a more in-depth fashion.
Section 8 – Clause Four
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
For a Section with eighteen clauses, one would think they had them pretty broken up so that each one had one purpose, right? I guess these points did not flow as well written as two clauses, but anyway, I digress. A country is not a country without citizens, right? Hence the, “We the people…,” that starts out the Constitution. Obviously, there were people here who started the country, and they would have children who would be citizens, and the country would grow that way, but to quote Field of Dreams, “If you build it, they will come.” If you build a fantastic country that is supposed to be “a light on a hill” that is different from the rest of the world, people will want to move there. Therefore the government must have rules about who can come in, what rights they have, and how they can become citizens. Thus, the ability to establish a uniform Rule of Naturalization.
Bankruptcies also need to have some central source of structure so that debtors and creditors are protected. In short, bankruptcy is a process that gives a business or individual a chance to start fresh by forgiving debts that cannot be paid and giving creditors a chance to recoup some sort of repayment via the sale of assets. This seems pretty straightforward, but it definitely needs to be legislated when you think about some of the ramifications of complete deregulation.
For example, let’s use a loan shark who illegally operates outside of these restrictions as opposed to a bank. We have all seen a mafia movie, and know defaulting with one of those guys does not go well for you. Physical attacks, confiscation of things, and even people you love or need to make money are all on the table– in short, a really terrible situation.
When outstanding bank debt, including medical bills and credit cards, gets you in an impossible spot, they have to go through the legal channels, and through them, you get a bit more protection. For example, thanks to this clause, you do not have to sell your home, clothing, tools for your job, or your car (within a specific value) to pay back your debts. Only things like family heirlooms, valuable collections, cash, stocks, or bonds are eligible to repay your debt. If you do not have the money to repay the rest after selling off the things you do not “need,” then the rest is forgiven. This power gives the National Government the ability to make these laws to be uniform across the country.
Section 8 – Clause Five
To coin money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
Money, money, money, monnney, MONEY! Woo hoo! Now that we have had the depression-inducing conversation about bankruptcy, let's talk about money! Since humans evolved to a primarily money-based economic system from trading and bartering, every country has had its own currency that it regulates. This clause gives Congress the power to make its own money and to put policies in place to protect its value. Basically, it is a blank check for Congress to charter banks, authorize who can print money and where, and to set its own standards for measurement. In today’s day and age, it may not be apparent why these two should be in the same clause, but we have to remember that even paper money was backed by gold back then. The true value of money at that time was always linked to some kind of precious metal. Thus, it was vital for commerce that the States agree on how much an ounce of gold actually weighed.
Because of our British roots, America stuck with the English system of measurements that we all know and love (inch, foot, yard, mile, ounce, pound, fluid ounce). This was different from the rest of the world, but what most of the colonists had grown up with and learned from their parents. Given that education was not as accessible or wide-reaching as today, Congress decided to go with what the average American citizen would be familiar with regardless of whether it is the most effective measurement system.
Section 8 – Clause Six
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
Well, the power to print money and regulate its value isn’t worth very much if anyone can do it, right? While you could possibly imply this power from the power to regulate money, this clause was added to point to the Framer’s view that this document should be interpreted AS WRITTEN whenever possible. Having the government imply powers that were not explicitly granted to it is an easy way for the government to take more power over time.
Section 8 – Clause Seven
To establish Post Offices and post Roads;
The ability to get mail and packages and for them to be protected is a vital part of modern society. Today, we take for granted roads, mail services, and delivery of pretty much everything. In 1787, however, travel was not as consistent, and mail service was closer to, oh, I have a friend who is going up to Boston this week let me give the package to him.
The framers knew this model was not sustainable as the country grew, and infrastructure would make us strong. This clause gives Congress the explicit power to maintain a postal service and appropriate for it the lands it needs for post offices and the roads for mail to travel on.
Section 8 – Clause Eight
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;
In an imperfect world where people must work to provide for themselves and support their families, why would anyone take time to discover new things if not to get them closer to the utopian model of having enough and not needing to work? This is the belief the framers are adapting from British law. People who discover new processes and apply them to their work or people who invent fantastic contraptions that improve everyday citizens' lives should be entitled to the sole right to produce their inventions, at least for a limited time. If the market accepts the idea, they should be able to make money off their idea without having to worry about others who have more money to invest copying it. The same goes for authors and artists of varying fields.
While this is a great goal and most of decent society would agree to it, the idea means nothing if no one is there to protect it. This is where the clause comes in. Because inventions made in any of the united States could be copied and will most likely be sold in other States, the national government would need the power to protect these inventors and artists.
This power and idea are not without check for the inventors, however. While the text says discoveries, it has been determined that only a physical invention using that discovery is patentable and owned by its creator.
For example, Ben Franklin “discovering” electricity does not give him the right to patent the idea that electricity exists and demand licensure of anyone who wants to study it and create products based off of it. Nikola Tesla creating a generator that creates alternating current electricity and a motor that runs off of it is a patentable idea that can be protected for a period of time.
The focus on the “period of time” is to allow for future innovation based on the same idea without the need to pay license fees to the originator once they have had an opportunity to be the sole person to make money off their invention. For example, think of pharmaceuticals. When a company invents a new drug, and it is approved, they have the sole right to produce it under their brand name for a given amount of time. They have that amount of time to recoup their investment and gain exclusive revenue from it. Once that time runs out, they can still produce the drug; however, its chemical make up is public knowledge. At that time, any company can produce the drug under a different name and sell it at a lower price because they only need to cover the cost of making it to make a profit, not the cost of discovery. All patent law balances the inventor's rights and the protection of fair competition, which benefits the consumer.
The idea of copyright is a bit vaguer because it does not rely on a physical invention but a work of art or writing. Like a patent, copyrights offer the exclusive right to reproduce, make derivatives, and distribute copies of the work. Trademarks fall under a similar category. However, they protect words, phrases, logos, and symbols from competitors’ use.
Section 8 – Clause Nine
To constitute Tribunals inferior to the supreme Court;
As defined in this clause, a Tribunal is a court created by the legislature generally used to review agency decisions. Their power is pretty limited in scope to the exact kind of cases that they hear. If the court’s decisions involve any potential deprivation of life, liberty, property, or property interest, they are subject to review by an ordinary court as described later in Article III. Examples of Article I tribunals include the United States Tax Court, the United States Bankruptcy Court, the United States Court of Appeals for Veterans Claims, and the United States Court of Federal Claims.
Section 8 – Clause Ten
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
A rarity amongst clauses in the Constitution, this is one of the few clauses that has an effect outside the borders of the United States. This is one of the first pieces of foreign policy in the nation’s history. The belief was that a sovereign nation has the right to protect its citizens even in international territory. This clause codifies that belief and allows Congress to make laws defining piracy (yes, like Jack Sparrow) and felonies (high crimes like murder, treason, burglary) on the seas and punish anyone who harmed an American in violation of these laws.
Now on to the Law of Nations piece. At the time, the prevailing thought in foreign policy was that there was an understood “Law of Nations” that resulted from a mutual respect of the European nations of each other. This “Law of Nations” Because the founders believed that the Constitution was a contract that called for strict interpretation, relying on the general consensus that there was a vague and unwritten understanding in how nations conducted themselves in relation to each other and that sovereign nations had rights to challenge violations of this was not sufficient standing for our government to have such power. The United States has both effectively and ineffectively used sanctions and military force throughout its history, especially after the Industrial Revolution, to shape the world to fit the “law of nations” that we expect. We even founded the United Nations to codify this standard after World War II.
As much as we have used this power to do, in our eyes, good around the world, it is essential to remember that it is only one function of the national government. While we may think we are helping solve crises and issues, foreign intervention often muddies an already grey area problem. When I personally interpret this clause, I expect the United States to apply sanctions and tariffs to intentionally strain the trade relationship with those who live by a vastly different moral code, but only use military force to directly defend against direct threats on American lives or sovereignty. Just because the government has the political power, soldiers, and technology to be the World’s Police does not mean that we need to be at the cost of American lives and American national debt.
Section 8 – Clause Eleven
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Back to Back World War Champs. Need I say more? Yeah, I am too long-winded to leave it there, and you all know it. So, as per our usual arrangement, let’s break it down. The clause has three main sections, so I will break it up as such.
Let’s start with the power to declare war. It could be easily argued from the above clauses about punishing those who break the law of nations and whatnot that the power to declare war would be inherent to a sovereign nation. You would be correct, and that is how many at the time viewed it. This is more about how wars are conducted when they happen. The framers had to balance between the efficiency of the English system where the king could declare war when we wanted to and the Articles of Confederation system, limiting it to the legislature to figure it out.
While President, already being the Commander In Chief as we will discuss in Article II, being the one to declare war would be efficient, it still left the finances and the lives of American citizens entirely up to one person's whims. So, they decided to take an approach where Congress can declare war and pass whatever legislation is needed to control the war, but the person who conducts the conflict and gives the military orders is the President. While this makes sense in wars that we start, what about attacks on Americans? War is not generally a two-party conflict in that both have to want to fight for there to be a fight. War often involves one party attacking another and the latter responding in kind and defending itself. In that case, this power has been interpreted that the President has the power to fight back in a war that we did not initiate, but he does not have the power to start the conflict.
Now that we have finished declaring how we would declare war – see what I did there – let’s talk about some funny words that I had to look up Marque and Reprisal. Letters of Marque and Reprisal are essentially allowing citizens the official chance to get revenge during wartime for goods that have been lost. Letters of Marque allow a private citizen or group to enter foreign territory and seize a ship or property deemed by Congress to be an enemy vessel or someone who traded with the enemy. Letters of Reprisal authorize private citizens to bring that ship or property home and are generally given at the same time as a letter of Marque.
The United States has not formally issued any letters of Marque or Reprisal since the war of 1812. In an interesting twist, however, the Goodyear company armed its airships to hunt down German submarines. Because they were not issued a letter of Marque, this act might have been illegal, but it can be assumed that Congress knew of this and let it happen anyway because they needed any help they could get. They could not act freely on the world stage, officially sanctioning Goodyear’s privateering after the practice was ended by many countries in 1865 with the Paris Declaration. We did not sign the declaration, but that does not mean that we would be free of any international consequence