Try reading the Constitution, Part II

We’re doing a series of pieces celebrating the US Constitution. Part I is here.

Today, we’ll start the actual exercise of our series with Article I, pertaining to the legislative branch. If you’ve had the idea that the Constitution is hard to understand, too much legalistic language as well as too many archaic words, you might want to give it another try. Feel free to get out your pocket Constitution to follow along.

Article I covers the legislative branch.

Article I

We'll go through these section by section, with a bit of commentary. Here’s Article I, section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a senate and House of Representative.

You know what legislative means: related to the making of laws. “Herein granted” may not be our normal conversational speech, but “herein” means within this document, the Constitution. And granted means given. Then “vested” is the next slight challenge. It means fully given, or placed, as a legal right or privilege. In today’s speech it would be hard to get clearer. But we might say,

All legislative powers granted by this Constitution are placed in a Congress of the United States…

Then there’s the part about the Congress consisting of two bodies, a Senate and a House of Representatives.

Remember a history lesson about the Great Compromise? That was the way to balance the power of population against the power of the states. Each member of the House would represent a set number of constituents (voters being represented). The Senate would have two members from each state, to represent the states’ interests. The two would have to come to an agreement in order for the legislative branch to pass any law.

Section 2 explains details about the House of Representatives.

·         Members would be chosen every two years, in a vote by the people in the district they represent.

·         Members must be 25 or older.

·         Members must live in the state where chosen (and further, must live within the district they represent).

·         Members would be apportioned according to a count of the people.

o   There would be an “actual enumeration,” a census, every ten years.

o   There would be a representative for every 30,000 people (when written, but the number has changed, because of an upper limit on total representatives).

o   Every state would have at least one representative, no matter how small the population.

·         For vacancies happening mid-term, state executives (governors) would call special elections to fill such vacancies.

·         Members choose their own Speaker (their leader and spokesperson) and other officers.

·         The House shall have the sole Power of Impeachment (calling into question, or charging with a crime for, the behavior of an elected official, such as the president, vice-president, federal justices, or other officers).

Section 3 explains details about the Senate.

·         There are two Senators from each state.

·         Originally these were chosen by state legislatures; the 17^th Amendment changed this to direct vote by the people of the state.

·         Each senator’s term lasts six years. Terms alternate so that one-third are voted on every two years.

·         Vacancies happening during recesses of the state legislature (during the time before the 17^th Amendment) could be filled by governor’s appointment until the next meeting of the state legislature.

·         Senators must be at least 30 years old.

·         Senators must be at least 9 years a US Citizen prior to being elected.

·         Senators must live in the state for which they are being chosen.

·         The US Vice President shall serve as the President of the Senate, non-voting except to break ties.

·         The Senate shall choose their other officers, including a President pro tempore (temporary, a backup president as needed) in the absence of the VP, or when the VP has stepped up to act as US President (as when the president has been incapacitated, has died, or has been removed from office).

·         The Senate has sole power to try all impeachments. (That means, when the House impeaches an office—that is bring forth the prosecution—the Senate conducts the actual trial.

o   If the Senate finds the defendant guilty, they have the power to remove that person from office. While this has happened a number of times with judges, a president has never been removed from office. It’s possible Nixon might have been, but he resigned rather than go through the Senate trial.)

o   The Senate cannot inflict a punishment greater than removal from office and disqualification from further office. In other words, the Senate does not have the power to fine or inflict prison or execution.

o   The convicted person could still face indictment, trial, and punishment according to the law.

Section 4 explains times, places, and manner of holding elections for Senators and Representatives.

Section 5 explains that the Senate and House shall set their own rules and processes for conducting their business. And they must keep a record of all proceedings.

Section 6 explains compensation and privileges:

·         Legislators shall receive payment from the US Treasury (not from their states or local jurisdictions—so that all members shall be equal).

·         Legislators shall be exempt from arrest—except for treason, felony (serious crimes), and “Breach of the Peace.” The founders were trying to prevent using the law as a political attack while still preserving protection against betrayal of the country.

·         Legislators can’t create a civil office or increase the emoluments (payments) for such an office and then, during their term, be appointed to such an office. The founders were trying to prevent legislators from creating ways to use their office to financially benefit themselves.

·         Legislators can’t be a member of both bodies at once. For example, being elected to, or appointed to, one before their term in the other has expired. Once they take the new position, they are considered to have vacated the previous one.

Section 7 relates to budget issues:

·         Bills (proposed laws) for raising revenue (such as taxes, tariffs, or fines) originate in the House.

o   The Senate may propose or concur with amendments, as on other bills.

·         Bills must have passed both the House and the Senate. (Bills can originate in either body, and then be passed to the other body. If the second body makes significant amendments, the bill goes back for reconciliation. Both bodies must agree on a bill before it is considered passed.)

·         Bills that have passed in both bodies are presented to the President to sign into law.

o   If the president objects to a law, he can return it to the originating body.

o   If the originating body reconsiders the bill and 2/3 approve, it becomes law, even without the president’s signature.

o   If the president doesn’t sign a bill but neither does he return it to the originating body within ten days (excluding Sundays and days when Congress has adjourned and thus prevents a bill’s return), it shall become law.

Article I, Section 8 covers nearly every enumerated power.

Enumeration of Powers

Section 8 is where it really gets good. Section 8 lists what the legislative branch can make laws to do (followed in Sections 9 and 10 with listed limitation). There are 18 enumerated powers of Congress, as written in the Constitution. To save space here, you can read them directly. Also, we talked about there here, where we add in a couple of additional ones from the Amendments. 

To be thorough, let’s list the prohibitions in section 9 and 10 (some rewording).

Section 9 tells what Congress cannot do:

·         Congress can’t prohibit migration or importation of persons from one state to another until 1808, but a duty of up to $10 per person can be imposed.

·         Habeas Corpus can’t be suspended except in cases of rebellion or invasion that require it.

o   Habeas corpus means that if a person is confined, meaning held in prison, they must be physically brought before a judge to determine if the confinement is lawful.

·         No Bill of Attainder or expost facto Law shall be passed.

o   A Bill of Attainder is a legislative act (bill) pronouncing a person guilty without a trial.

o   An expost facto law is legislation that declares people guilty of violation retroactively, declaring their guilt for acts committed before a law was the law.

·         No Capitation, or other direct, Tax shall be laid.

o   This means no direct per person tax, or in other words, no income tax.

o   This was changed with the 16^th Amendment in 1913, which now allows the income tax.

·         No Tax or Duty on articles (goods) exported from any state.

o   An example would be taxing corn that Nebraska exports to other states or countries. The federal government can’t pick and choose ways to burden particular states.

·         No preference by Regulation of Commerce or Revenue to the Ports favoring one state over another. And vessels (ships) have to pay duties (taxes or fees) to leave one state and enter another.

o   An example would be regulating in such a way that eastern coast ports would have an advantage over gulf coast ports.

·         No money can come from the Treasury unless the legislature has made it legal by passing an appropriations bill. Also the federal government is required to publish a regular Statement and Account of Receipts and Expenditures of all public Money; they have to show their account books.

·         The US does not grant any title of nobility. Also, no public officeholder is allowed to accept any present Emolument (money payment or other profit), Office, or Title from a leader of a foreign state (country).

Section 10 limits the state governments, so they cannot act against the other states, or against the interest of the nation:

·         States can’t enter into any treaty, alliance, or confederation.

·         States can’t grant Letters of Marque and Reprisal.

o   This would allow an attack on a ship, for example, based on the state’s declaration. It is essentially a private war. States cannot declare war, in other words.

·         States can’t coin Money.

·         States can’t emit Bills of Credit.

o   These are promissory notes. It’s a type of money, in other words. They were not to pay debts with anything but legal tender.

·         States can’t impose duties on imports (with the exception of paying for legally required inspections).

·         States can’t keep their own troops, or enter into a compact with other states, or declare or engage in war, except when actually or imminent invasion.

·       So that covers all of Article I.

We’ve covered all that the federal government can do, the sum total. There are some notable things missing:

·         Power to take income from those who earned it to give to those the government chooses to favor (income redistribution).

·         Power to offer charitable services (welfare).

·         Power to guarantee income, food, or housing.

·         Power to supply and/or govern education.

·         Power to force purchase of a service or product (such as health insurance).

·         Power to require payment into a retirement supplement (Social Security).

·         Power to interfere with commerce that doesn’t cross state lines.

·         Power to redefine marriage in a way that is contrary to longstanding law and tradition, and to enforce acceptance of the new definition, even when it violates personal religious beliefs.

·         Power to subsidize any industry (alternative energy).

·         Power to target industries in accordance with a social agenda (gun manufacturing, automobile manufacturing, nuclear energy, oil and gas, fast food, or sugary drinks).

·         Power to use taxpayer funds to support abortion.

·         Power to subsidize or control student loans.

·         Power to take over any industry (as when the Obama administration temporarily took over General Motors and banks).

·         Power to favor or disfavor individuals or groups for hiring, educational opportunities, or other purposes based on their race or religion (for example, affirmative action).

There are certainly more things the government is doing, or trying to do, that are well beyond the enumerated powers.

Some people characterize the very desire for limiting government to our Constitution as hating all government, and then claiming we’re hypocritical for wanting a military or border control to protect our sovereignty. That’s a mischaracterization. The pro-Constitutional view favors government—but a limited government. Government must be limited to its proper role: protecting life, liberty, and property. Or, more specifically, as the Preamble to the Constitution says about what a more perfect union is established to do:

Establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.

The founders assumed those government responsibilities enumerated in the Constitution could be managed on about $20 a year (in near-current-day dollars). Imagine how easy it would be to pay off the national debt, in a thriving economy (which happens when government gets out of the way), if government did only what it was allowed to do.