• Publius

The United States Constitution Explained: Article I - The Legislature: Part 9 - Congressional Limits

After the 11-page rundown of what Congress Can do we completed with Section 8, that necessary and proper clause seems pretty unstoppable at giving the National Government a tremendous amount of power. Now we get to the first part of the Constitution that directly addresses the former colonists’ issues with the overreach of the British government.

As we all know, more of these “the government can’t dos” were added in the first Ten Amendments to the Constitution handling things like freedom of expression, property rights, and rights of those accused of crimes. In today’s section, you will see how the framers dealt with the big picture ideas of what the government can and can’t do. Those amendments were added because the States would not ratify the Constitution without text directly protecting individuals.

Section 9 – Clause One

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

As we talked about in Section 2, slavery was present and legal during the formation of the United States. There were conflicts early on between abolitionists like Alexander Hamilton and people who profited from slavery regarding how it should continue in the United States. The framers had to find a balance in policy between the two ideas, just like in Section 2.

Once again, we will state that the ideal solution would be for slavery to be outlawed and the slavers to join the Union and just deal with it. However, we all know that this nation was founded by imperfect men, so this solution was impossible.

So, where does that leave us?

It left us with Abolitionists limiting the growth of slavery and its power without cutting too far into the plantation owners’ profits so that they would agree to join the Union. The compromise broke down as follows. Those who profited from slavery gave up any newly added States' ability to participate in the Transatlantic Slave Trade. In return, the Abolitionists gave up the right to make national laws that banned the importation of new slaves until 1808, approximately twenty years later. Like the slavers got a win in the three-fifths compromise by having the slaves counted in the population at all (for more information about this, check out our post on Section 2), the Abolitionists got a win by allowing the government to tax those that imported slaves. They set a maximum rate of up to ten dollars per person or approximately three hundred dollars per person in today’s money. This tax was modest in that it was only between two to seven percent of the price of a slave at the time, but it was still a punitive measure to attempt to dissuade people from the slave trade.

Section 9 – Clause Two

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

Ok, let’s start by putting on our dead language hat and figuring out what a Writ of Habeas Corpus even is before we can begin to break down this clause. Literally translated, it means “a writing that you have the body.” A more practical translation from Cornell Law school’s website is an order from a judge for a State to bring forth a prisoner to determine if their detention is valid. According to Chief Justice John Marshall, the “great object” of the writ of habeas corpus “is the liberation of those who may be imprisoned without sufficient cause.” The roots of Habeas Corpus go back a long time in British law to the Magna Carta from 1215. Its goal was and is to restrain the government from imprisoning people without due process of law. Today this means that the government cannot randomly imprison people or take their rights away without due process of law.

The second part of this clause talks about the suspension of the rights of Habeas Corpus. It has been widely accepted by the Supreme Court and other commentary that Congress is the one who decides when a particular situation meets the threshold of Rebellion or Invasion. Abraham Lincoln attempted to suspend the writ in 1861 by ordering the arrest of anyone who was deemed to be hurting the Union war effort. He was met with a lot of backlash and eventually went to Congress to have them enact a law that would achieve the same goal.

Section 9 – Clause Three

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

Ok, so you didn’t take off your dead language hat, did you? Nah, if you have actually been reading with me for this long, you know better than that. I am going to just give a definition of these two terms and then talk about why the clause is important.

Bills of Attainder: a legislative act which inflicts punishment without a judicial trial.

Ex post facto law: ex postfacto literally translates from Latin as “out of the aftermath.” Laws that fit in this category retroactively change the legal consequences or status of actions that were committed or relationships that existed before the enactment of the law.

Ok, so now that we have some working definitions, let’s talk about why they are important.

Bills of attainder were common during the American Revolution. The colony governments used them repeatedly to punish those who supported the British. Think of them like sanctions we place on foreign nations. By outlawing them, it prevents the government from writing a law to specifically punish individuals and take away rights for not agreeing with them.

Ex post facto laws definition has been changed by the Supreme Court to only refer to criminal statutes that punish people for past actions. An example of a law that was challenged as ex post facto came in the wake of the Civil War. The law sought to ban any attorneys who had participated in the Rebellion from working in federal courts. The law was struck down by the Supreme Court because it created new punishments for past actions. Similarly, any law that bans the purchase of certain types of firearms cannot be used to punish those who already own them.

Section 9 – Clause Four

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

Feel free now to take off your Dead Language Hat for a while as the rest of the clauses in this section are in semi-straightforward English.

If you remember back to our last post, you know that Congress has the power to levy Taxes, Duties, Imposts, and Excises, and these must be uniform throughout the States. This clause further defines this power to make it limited in scope. It specifically takes the idea of taxes that existed for centuries, tax collectors coming to your door and saying pay your yearly/weekly/monthly dues to the government and takes them off the table. Also, it outlaws individual income taxes because they are not done in relation to the census.

Now I know some people are about to rage post about this because we have all paid income taxes throughout our adult lives. The 16th Amendment changes all of that and gives Congress the power to levy taxes on incomes. To keep with our standard on amendments, I will expand further on the challenges, reasons, and structure of the amendment when we get there.

Section 9 – Clause Five

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

To maintain a freely functioning economy, the founders wanted to ensure that businesses felt free to operate in the global economy without fear of National Government Intrusion. To facilitate this, they restrained the National Government from forcing them to pay export taxes on their goods as they left the United States. This does not mean that they won’t potentially need to pay import taxes on their goods as they enter other countries, but they would not have to pay the United States National Government for their goods leaving the United States.

Section 9 – Clause Six

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

Over the years, the Supreme Court has held a narrow view of the limitations imposed by this clause. It has upheld that Congress, under the Commerce Clause's power, can erect lighthouses, ports of entry, and improve infrastructure that may give advantages to one port over another. This clause mainly restricts Congress from making laws that force all traffic to one port or for all traffic to be required to enter multiple ports.

Section 9 – Clause Seven

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

This is an explicit check on Executive Power. They wanted to be different from England, where the King could pay money directly out of the Royal Treasury with minimal checks. To keep the money in the people’s hands and out of a singular executive, they gave the Taxation Power and the power to spend the money they raised directly to the people’s branch. While this sounds great, Congress has not executed this power in the way one would expect throughout history.

Over time, as government agencies have grown, they have presented budgets to Congress, and Congress has paid out to them a lump sum that equals their total budget and allowed them to manage the money from there. This has been an efficient way for the agencies to operate from a legislative sense. However, it has led to gross overspending because of the way Congress has handled these budgets. If an agency has not spent its full budget from last year, Congress will cut its budget next year. This leads to a giant fourth quarter of spending from the various agencies so that they can ask for larger budgets the following year. Congress has delegated so much power to the various agencies for policymaking that they tend to “defer to the experts” who work in the agencies to know how much money they need instead of working with them to determine it for themselves.

One would think that the lump sums to the agencies would inevitably make the spending bills much smaller. You would be really, really wrong. The last yearly appropriations bill was over 5,600 pages long, and Congress had two hours to read it, understand it, make a decision on how they wanted to vote on it, and vote on it. And THEY ACTUALLY PASSED IT.

The laziness in Congress with how to handle their responsibilities for appropriations has been growing for years. This year, amidst all of the partisan politics being played with the elections, this bill was negotiated in secret by a bi-partisan commission from both houses. They attached a stimulus package for COVID relief to the bill to use as a cudgel against any potential opposition to how the bill was presented. The bill was introduced as a perfect bi-partisan solution that everyone should just agree to because otherwise, the government may shut down. No debate was allowed on the issue, and there was no ability to add amendments. That means that the only Americans who were knowledgeably represented are those whose Representatives or Senators were a part of the committee. This is where we need strong textualists to make a stand in Congress and fight to have bills that have a reasonable timeline and are easily understood by our elected officials and their constituents. After reading this, I know that many of you may want to quit reading my posts because the media would have you believe that anyone who speaks this way is a partisan hack that does not care about people.

I challenge you to see it from a different perspective. Both parties are guilty of inflating bills and trying to pass too many things at one time under the guise of negotiation.

I want to voice concern not with the negotiation tactics but with it happening in secret back rooms with only a few people involved. The “room where it happens,” as Burr sings about in Hamilton, should not be in Jefferson’s second home in New York or a conference room in the Senate office in DC. The room where it happens should be the chambers of the House of Representatives and the Senate where the Framers intended that governing occur. Having it occur there does take longer and can be less efficient. But voting on bills that they cannot possibly have even read, much less understood, is how a representative democracy dies and an oligarchy rises. We set out to defend the United States Constitution because it is under attack by the very entities that it created. An attack on the Constitution does not always mean an overt attempt to overturn it or question its validity. The worst attacks are in the choices of Senators and Representatives who choose to follow party leadership over knowledgeably voting for what is best for their constituents.

Section 9 – Clause Eight

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

As Jefferson famously penned in the Declaration of Independence, the founders believed that all men were created equal. As we have discussed in previous posts, the founders did not always correctly and evenly apply this theory, especially as it relates to slavery. However, they did get a few things right. One of these is removing the idea of people of noble versus common blood. The founders believed that who your parents were was not your defining feature for the life you could live in America. While the first part of this clause deals with how Americans view nobility in their daily lives, the second has more to do with elected or appointed officials maintain allegiance to their post. If someone is an ambassador to, let’s say, Britain, and the King or Queen wants to knight them, that could cause a severe conflict of interest. If they had a title of nobility from the foreign government and still held their position with the American government, which one would know they could trust him? The same goes for gifts as well because if someone is receiving gifts, they could just as easily be bribes to ensure that they act not in the best interest of the United States, but in their own best interest by listening to the ones filling their wallet.

- Publius

In our next post, we will be finally finishing up Article I by breaking down Section 10. 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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