Welcome to class once again ladies and gentlemen. Today's lesson is the one that I am looking forward to the most because it deals with the largest collection of powers in the U.S. Constitution:
Article I, Section 8. So lets jump right into it.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
The very first power of the U.S. Congress is the power to lay and collect taxes. If you read the language carefully it says for what purpose those taxes are to be raised: pay debts (we have close to $12 trillion now), provide for the common defense (military and other defense related organization), and promote general welfare. Most people, including our representatives, thinks that the general welfare wording here and in the preamble gives them authority to tax and spend on anything that can be covered in the term general welfare, like education, unemployment benefits, retirement plans, health insurance and even more. The problem with that mentality is that you have not just taken a government limited by the expressed powers of the Constitution to an unlimited government.
The other thing most people do not recognize in this clause is that the taxes collected by Congress must be uniform in nature. Specifically it refers to duties, imposts, excises, which are all forms of taxes. Unfortunately the current tax system in the United States is far from uniform. This is not just referring to the progressive income tax but also taxes on import, exports and vice or sin taxes.
To borrow money on the credit of the United States;
This clause is pretty self-explanatory and explains why we are in such a hole right now as a nation. There was a goal in the 1990s to pass a balanced budget amendment that would have effectively changed this clause. I feel it has merit though I understand the reasoning why it has never passed. The government does need some power to borrow money in tough economic times, even if that is counter to the natural order of things. In good times you must save, so that when the tough times come you have the surplus to draw on.
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
This is where Congress again decides to grab most of its power in this modern era. The true intent of this clause is the allow Congress to regulate the business done between the states. During the Confederation Period, the states had trade wars between each other. The Congress needed this power to stop the states from harming each other with unfair trade practices.
This clause is one reason why I feel the health care legislation current being debated by Congress is unconstitutional. Health insurance is only bought at the state level. Each state sets its own regulations. For the COngress to have to power to regulate health insurance companies they would need to be involved in interstate commerce, which they are not. I buy my health insurance from a company in Nevada, not Illinois. Now if Congress wanted to write a law allowing companies to sell across state lines in accordance with the laws of health insurance laws that of state, then they have the authority to offer up more regulation over that industry.
The fact that the Congress has power to regulate trade with "Indian Tribes" is where they get the authority to write and pass legislation on the Native American tribes in the United States.
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
This give the Congress the sole power to regulate both naturalization of new citizens and bankruptcies. It was under this clause that the Congress passed among other legislation like the Chinese Exclusion Act. Even though it was horribly discriminatory they had the authority to do so.
Debt and bankruptcy were big issues during the Confederation period. It was the main reason behind the events of Shay's Rebellion. Also many other citizens in other states rose up against the courts and legislators to seek relief from creditors. This clause made bankruptcy law the sole power of the federal government. They can pass the laws that affect everyone in the U.S. equally.
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
Congress has the sole power to print money, which it does a lot of in this day and age. But it also tells us how much it is worth. If you look at a modern dollar bill it says Federal Reserve Note. This is because the Federal Reserve Banks try to regulate the worth of our money. It used to say, Gold or Silver certificate, when our money was actually backed by something valuable. A dollar was not an amount of currency but a weight in gold or silver. You cold take the dollar to a bank and get back real gold or silver. Contracts could be paid in gold and silver. Early in American history banks typically issued their own bank notes because gold and silver were still the only real currency in the U.S.
Also Congress can set weight and measures, which is why we are still on the English system of inch, feet, miles, lbs, quarts, pints, gallons, barrels, bushels, etc.
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
Enter the Secret Service, whose original and ongoing job is to protect the integrity of our currency. This was the original criminal law in the U.S. The Secret Service was also responsible for investigating other criminal acts prior to the invention of the FBI.
To establish Post Offices and Post Roads;
The power to create the United States Postal Service, but it goes beyond that as well. The post roads section of this clause open up this power even more. Considering that the USPS does not carry all mail it means they do have some legislative power over companies like UPS, Fed Ex and DHL. They carry post, it can be implied that they can be legislated by Congress. Also because mail can be carried in planes, trains and automobiles, it stands to reason they have a reasonable (key word) amount of legislative authority in those areas as well, but ONLY when they carry post (mail). Like the can enforce fuel efficiency standards on USPS vehicles, but not mine, unless I am forced to carry mail. Also because every road in the U.S. is capable of carrying post, they may have reasonable legislative authority on the roads as well.
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;
This clause is to protect inventors and artists so that their work may not be stolen. This is where the government gets the authority to prosecute people who have downloaded music illegally from Napster and other services. Key term in this clause is limited times. Generally the length for a copyright is three generations. Anything after three generations is part of the public domain. Recently Disney had to go to court to get their copyright of Disney characters renews because it was about to pass the third generation. Also there seems to be some abuse on this clause in the realm of drug companies renewing patents to prevent generic brands from making their way to market.
To constitute Tribunals inferior to the supreme Court;
This give the Congress the authority to create additional courts under the Supreme Court of the United States.
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
This is one of the few times the Constitution give Congress the power to enact specific criminal laws against the United States, piracy being the key one in this provision. This is why the pirates captured last year for kidnapping the captain the Meersk Alabama is being tried in our federal courts.
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
The war powers of our government are split between the Congress and the President. The Congress declares war against another nation and the president commands the military strategy. There really have only been five declared wars by Congress (Extra points if you can name all of them).
Letter of marque authorize private shops to attack an enemy vessel during a war without being punished as a pirate. Also Congress can authorize the seizure of property of the enemy. They did this during both world wars with Germany corporations in the United States. The U.S. has done this in modern times when they froze the assets of groups in the U.S. funding terrorism.
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy;
This allows the Congress raise a standing professional army, which the American colonists feared due to their experiences under British rule. Until the Civil War most states submitted their militias for military service. These militias were loyal to the states not the U.S. The limit on this power is that no appropriate for the military can be longer than two years. Another protection from our standing army is the oath all soldiers take:
"I, _____, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God."
A soldier swears first to defend the Constitution, not to a king, the Congress or even the President of the United States. The Constitution is above the orders of the President. There is an organization out there that is made up of people currently serving in the military, and law enforcement officers. This nonpartisan organization promises that they will not any obey order that goes against the U.S. Constitution.
The power to make a use a military draft to raise an army can be implied by these provisions. Technically the times that a draft has been used to raise an army has not really been effective. During the Civil War, World War I, World War II, and Vietnam most soldiers joined the military voluntarily.
To make Rules for the Government and Regulation of the land and naval Forces;
This gives Congress the authority to write rules, regulations and laws for the U.S. military. In today's day that is the Uniform Code of Military Justice. Soldiers are judged by a military courts create by Congress. If they commit a crime as a soldier they are tried their not in our federal or state civil system.
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 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;
This give Congress the limited power of regulating the militias of the states but only the specific powers listed in this provision: execute laws of the U.S. (like when Washington called for military to put down the Whiskey Rebellion) , suppress insurrections (like during the Civil War), and repel Invasions. The Congress may only organize and regulate said militias when they are working specifically for the U.S. government. In 1916 Congress passed a law making the state militias part of the national government. I am not sure why that has not been challenged in the U.S. federal courts. It is clearly an unconstitutional law and gives unprecedented power to the federal government over the states individual organized militias.
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;
Congress has the authority to control with legislation the federal district where the capital is located. The residents of the District of Columbia did not really get any democratic self-rule until 1973. The Congress this year tried to pass the D.C. Voting Rights Act which would give citizens of Washington, D.C. comparable representation in the House and the Senate. This law never passed and is grossly unconstitutional if it did. Residents of D.C. are not entitled to representation in Congress because only states have representatives. One solution to this problem could be to make D.C. a state. Another would be to ceded the residential portion of D.C. back to Maryland , like what was done to the Virginia portion of the D.C in 1846. Then those people would have representation in Congress. D.C. was never intended to be a residential city, just a city to house the necessary government structure.
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.
I have already dealt with this clause in a previous U.S. Constitution lesson on Expressed v. Implied Powers. If you would like more information on this topic please click on this link:
The U.S. Constitution - Lesson #3: Expressed v. Implied Powers.
Whew! That was a long lesson. Next week we will look at the specific powers denied to Congress and the States. I hope you all have a good weekend. Send any questions my way. Class dismissed!
