• Publius

The United States Constitution Explained: Article I - The Legislature: Part 8 - Congressional Powers

Updated: Jan 6

Hey everyone! Sorry for the long break. It has been a bit hectic with the holidays and such and this section was a doozy to sit down and write. 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 job. 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 consequences of officially allowing the action.

Last but not least, for this clause at least, we get to taking property during a war. This power gives Congress the power to take any property within the United States' territorial jurisdiction that would aid the enemy. This applies to citizens as well and overrides the protections of the Fifth and Sixth Amendments as long as Congress can show how said property would end up in enemy hands. It overrides the Fifth and Sixth Amendments because it has to do with the property in question, not the individual's guilt.

Section 8 – Clause Twelve

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

First to fight for the right, And to build the Nation’s might,

And the Army goes rolling along.

Proud of all we have done,

Fighting till the battle’s won

And the Army goes rolling along.

Well, with all those war powers we just discussed, someone had to get down and dirty and carry them out, right? Well, in rolls the power to raise and support Armies. This clause has three main parts, so once again, let’s tackle them one at a time and break it down.

If you look at the clause, you might be asking, “Hey Publius, I only see two parts of that clause, raising and supporting and how they can pay for it.” My response is that raising an army is a vastly different power than supporting one. Raising an army often involves getting people to join, recruiting operations, and, yes, conscription – often referred to as a draft.

We have had two different draft laws in our nation’s history. One in the Civil War, which went unchallenged and garnered troops to support the Union and squash the rebellion, and the one we are all more familiar with, the Selective Service Act of 1917. The court challenges to the Selective Service Act further defined the power to raise Armies. Opponents said that it violated states' rights to raise militias or the Thirteenth Amendment’s protections on involuntary servitude. The court ruled that Congress's power to raise armies superseded states' rights to their militias and that a draft does not stop states from having their own militias. On the Thirteenth Amendment, the Court agreed that it was not meant to absolve citizens of their responsibilities to the government, such as serving in the Army or state militias when needed or on juries.

Now that we have raised an Army, Congress needs the power to pay for it. If you have seen the play, Hamilton, you know that the Continental Congress could not effectively pay the soldiers for their service in the Revolution days. This led to mass mutinies and consistent problems for Washington and the American forces. To have career generals and wise leaders, Congress needed the power to effectively pay for the Armies they raised.

Lastly, the American citizens as a whole were not completely comfortable with the idea of a standing army ready to serve at the pleasure of the commander in chief at all times. To ease this concern, the Framers limited Congress to two-year budgets for the Army such that if the citizens elected representatives that determined that there were no threats, that standing Army was not needed, and state militias would be sufficient, they could shut down the Army at any time.

Section 8 – Clause Thirteen

To provide and maintain a Navy;

Anchors Aweigh, my boys,

Anchors Aweigh.

Farewell to foreign shores,

We sail at break of day-ay-ay-ay.

Through our last night ashore,

Drink to the foam,

Until we meet once more.

Here's wishing you a happy voyage home.

In a world with oceans, an Army can’t get you everything you need or help you defend your merchant ships. You need powerful Navy ships to come in and help you control the high seas. All of this flowery language is to say that the above provisions for Armies also apply to the Navy. However, there was not as much fear of a standing Navy, so they did not explicitly define the length of time that Navy budgets can run. To make federal budgeting easier, it has been generally accepted that any military branch is subject to the two-year appropriations rule.

Now I can’t let you off the hook on this clause so easy just because it is pretty much a copy-paste of the clause above. While it has never been challenged in court, it has been generally held by most legal scholars that any conceivable military branch that fulfills the purpose of the Army and Navy, defending the nation and protecting the law of nations, is held to be Constitutional. The Air Force came originally from the Army Air Corps and was broken off to operate more freely without the Army’s command structure. The Space Force has also yet to be challenged; however, if its mission ever differs from that of the Army and Navy and has more to do with space exploration and defending against interplanetary attacks, then Congress may need to amend the Constitution to keep it around.

Section 8 – Clause Fourteen

To make Rules for the Government and Regulation of the land and naval Forces;

As anyone who knows someone who served in the military, or anyone who has served or currently serves in the military, it is an entirely different world than civilian life. With that in mind, it makes sense that they would need to follow a different set of rules, not devoid of the Constitution's protections, but with them taking a different form. Because military members' lives literally depend on each other, the courts have upheld stricter regulations on military posts.

Also, essential to a republic like ours is the military’s political neutrality. For this reason, there have been limitations on public political speech and on speech that asks soldiers to directly defy orders. The parallels of these would both be allowed under the First Amendment for civilians.

Section 8 – Clause Fifteen

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

In early American History, the people were scared of having a standing army. Militias were volunteer groups organized in each State to defend against invasion. Additionally, they were often used to protect settlers from Native Americans, who were, in turn, trying to defend their land. Congress delegated the main spirit of this power over to the President later since he is the Commander in Chief, but they still maintain the responsibility of funding the militias. This is one of the dual powers shared by both the States and the National Government. While States cannot send their militias into other States without Congress or the President ordering it, they can use the militia within their own state to put down insurrections and respond to emergencies. Today we call militias the National Guard of each State.

Section 8 – Clause Sixteen

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 effectively call out the militias of several States into a singular fighting force means that Congress has to have some say in how they are organized and disciplined. Also, I know no States objected to having the National Government pay for the guns as well. Once the guidelines are set, and the arms and ammunition are bought, it is up to the States to train the militia to the standards Congress sets, governing them until they are called out by Congress and selecting the officers. This goes back to the duality of the power that we discussed in the last clause.

This is one area where the lines are blurred between the State jurisdiction and the National jurisdiction. Basically, the way both of these break down is Congress saying, “we will arm your guys, set rules for how you train them, but you get to decide everything else unless they are acting under our direct orders.”

Section 8 – Clause Seventeen

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

If you have seen the play Hamilton, then you know that the original Continental Congress and the later National Government Congress (Under the Articles of Confederation) didn’t do so well at paying the soldiers who fought in the American Revolution. Even when they did pay them, it was often in greenbacks that no one wanted to accept as legal tender. In 1783, soon after the end of the war, eighty or so soldiers went to Congress and demanded to be paid. In the process, they physically threatened and verbally abused the Congress members. The State government of Pennsylvania and the city government of Philadelphia did nothing to stop the riots. You are probably asking yourself, “Um, Publius, are you sure we are reading the same clause? Because the one I read talked about where the capital should be, not anything about paying soldiers.” You would be right; however, it emphasizes why this clause was added. The Framers, especially Madison in Federalist No. 43, knew that the National Government needed its own space apart from any State’s jurisdiction that it could control so that they would not be reliant on State governments to protect the members of the National Government. Over time, Congress has delegated more and more power to the people of Washington D.C. to elect a mayor and city council to handle the local governance.

The second part of this clause gives Congress the power to purchase land in the States to be used for National purposes. This is how military bases, National Parks, post offices, and even the Hoover Dam were created. Once the National Government has bought this land, they are in charge of how this piece of land is governed until it is no longer the National Government's property. This has come into dispute over the years, and now the Supreme Court's prevailing view is that if the State wants jurisdiction over this land, they can agree with the National Government to share jurisdiction.

Section 8 – Clause Eighteen

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.

Woo hoo! The -And in the last clause means we are almost at the end of the section! Last, but from a power standpoint, certainly not least, in the extremely long eighth section of Article I, we have the famous “Necessary and Proper” clause. This clause gets to the meat of expanding the government's power enough to actually execute the powers we listed above.

This clause extends those powers within limits the Judiciary is meant to hold them to. This rounds out each of these powers and makes them practical to use.

As held up by the Courts, Congress has used the power granted by this clause to organize the federal judicial system, enact the federal criminal code, and write the laws necessary to hold up the nation's treaty obligations.

When we get to Article III, we will discuss more about the courts in charge of keeping the laws passed using this clause within the Constitution's guidelines.

- Publius

In our next post, we will continue on with Article I, Section 9. Please remember to follow us on Instagram and Facebook @marchforthfortheconstitution for other Constitution content and share us with your friends. When we reach 100 followers on our Instagram or Facebook page, we will pick one lucky follower to give away a $25 Amazon gift card!

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