Try Reading the Constitution, Part IV

This is the fourth, and probably final, part in our series celebrating the US Constitution. We started this on Constitution Day, our intro celebration in Part I. Then we’re going through the first three articles of the Constitution, covering Article I, the legislative branch, in Part II; and Article II, the executive branch, in Part III.

Pull our your pocket Constitution and join us today, when we’re covering Article III, pertaining to the judicial branch, laying out the powers vested in the Supreme Court and lower federal courts. It’s a brief three sections. Afterward we’ll cover some of what’s not in there that maybe you thought was there. And we’ll talk about the current Supreme Court nomination, providing us a live history lesson.

Article III, on the Judicial Branch

Article III

Section 1 covers judicial service. It says judges serve “during good Behaviour,” meaning they can be removed if they do illegal or unethical acts. It also says they get paid for their service—an amount that won’t be diminished during their service. That is, they can base their decision on whether to accept an appointment to be a judge knowing what the pay will be, and not worry that they’ll have to later adjust to a lower amount—a worry that might influence judgment.

Section 2 covers which cases are handled by the federal judiciary. It says these will include cases relating to laws under the Constitution, which includes US laws and treaties. Also, they handle cases related to maritime law, and cases in which the United States is one of the parties. They’ll handle disputes between two or more states, disputes between a state and a citizen of another state, disputes between citizens of different states, disputes between citizens of the same state who claim lands under grants of different states, and disputes between a state or its citizens and foreign nations or their citizens.

For ambassador cases (including public ministers and consuls) and also cases in which a state is one of the parties, the Supreme Court is the court of original jurisdiction. For all other cases, it is considered an appellate court. And it is the highest court of appeal. Once they rule, that case is over.

Criminal trials require a jury, and they will be held in the state in which the crime was committed. In cases where the crime wasn’t committed within any state (e.g., in another country, on the seas), the trial takes place where Congress directs by law.

Section 3 defines treason against the United States. It “shall consist only in levying War against them [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” This is the only definition of a particular crime given in the Constitution. That phrase “giving them Aid and Comfort” means it doesn’t have to require actually picking up a weapon of war to use against the US; it can include passing along secret information or supplying weapons, or in some other way helping the enemy in its goal of overpowering the United States. It doesn’t include speaking out in opposition to US policies, however, even when speaking that opinion helps the enemy; that is a freedom of speech right.

There’s a high bar for convicting a person of treason, requiring two witnesses to the same overt act, or an open confession in Court.

Congress gets to determine punishment. But, unlike tyrannies of the past, it cannot allow punishment of family or friends who weren’t involved in the crime; only the actual traitor can be punished.

 

What Else

That covers the entirety of Article III. It doesn’t say that the court gets to determine whether there are hidden meanings, or penumbras of meaning, in the Constitution. It doesn’t say it’s up to the courts to determine when life begins. It doesn’t say the courts get to determine policy surrounding abortion—or policy surrounding any other issue for that matter. It doesn’t say it’s up to the courts to change the definition of marriage from what it’s been for several thousand years. It doesn’t say the courts have the right to re-write a badly written law to make it better, or better able to accomplish a desired outcome.

What else doesn’t it say? Surprisingly, it doesn’t even say it is up to the Supreme Court to determine whether a law is constitutional. That didn’t become a thing until Marbury v. Madison.

It is emphatically the province and duty of the Judicial Department to say what the law is.— Marbury, 5 U.S. at 177.

This happened even though Thomas Jefferson warned against it:

[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not... would make the judiciary a despotic branch.... [T]he germ of dissolution of our federal government is... the federal Judiciary... working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped.—Thomas Jefferson

The Marbury case was good in that it declared that the Constitution had the force of law, not just a nice set of principles to set on a shelf and refer to as desired. But, the downside was that it gave the Supreme Court powers beyond just settling judicial cases; it empowered the Supreme Court to essentially judge the work of the legislature. As the saying goes, with great power comes great responsibility. The founders (was it Hamilton? Yes, in Federalist #78) assured us that the judicial branch was the weakest branch, and we should not worry about it becoming too powerful.

And what else doesn’t Article III say? How many justices there should be. We’ve traditionally had nine. It started in 1789 with 6. The court can function with fewer; for example, when a judge must recuse him/herself, or when one has died or stepped down and has yet to be replaced. When the court ends up with an even number, that does make it feel less settled, although in practice such an even split decision would sustain the lower court’s ruling, going against whichever side appealed.

Back in FDR’s day, he wanted the Supreme Court to rule a certain way on an issue, which they had pointed out was not something the Constitution gave the president the right to do. So he threatened to “pack the court,” which meant to add to its numbers, putting multiple people on the Court that he could count on to rule his way. It would have undermined the separation of powers and made the Court seem illegitimate. In order to prevent that, the Court cowed and ruled his way, favoring big government power (this included upholding the internment of Japanese citizens in Korematsu v. United States). I always think it’s unfortunate when decisions are made out of expediency, rather than truth and law (heads up to Chief Justice Roberts). I wonder what would have happened if everyone had acted with integrity.

What if the Court had ruled according to the Constitution? Then FDR follows through on his threat, but the Senate does its actual job of not consenting to any appointment determined to rule against the Constitution? Then FDR does not get to continue his social experiments, which kept the US in the Great Depression an unnecessary extra decade. Plus, we would have had a pattern for standing up to tyranny within the government, rather than acquiescing to it. Wouldn’t that have been better all along?

We’ve had a court packing threat come up again recently. Again by Democrats.

We have a current vacancy. The timing is unfortunate. Eighty-seven-year-old Justice Ruth Bader Ginsburg passed away September 18, within a couple of months of the presidential election. The Democrats insist that it’s wrong, and against the law, and disrespectful of the justice’s dying wish, to appoint a replacement to the Court before the election. And they threaten that, if the Republicans go ahead and do that, they will grant statehood to Washington, DC, and to Guam and Puerto Rico, with the intention of adding Democrat senators, and then they will add numbers to the Supreme Court, and they will prevent Republicans from ever gaining power again. In other words, they are threatening tyranny—because they say the Republicans are wielding their power in a less than courteous way. Hmm.

Is it wrong for a president to make an appointment to the Supreme Court in an election year? What has been done historically?

The SCOTUS Blog identifies all appointments arising in presidential election years since 1900. Each time the president made an appointment to fill the opening. 

Senator Ted Cruz on his podcast
screenshot from here

Senator Ted Cruz, on his podcast, says out of 27 times (or 29—he says 29 in a recording Ben Shapiro uses, and the math adds up to 29, so he may have misspoken in his podcast) that it has happened, each and every time the president has made an appointment. Here’s what he says: 

Ted Cruz: What does the Senate typically do? What does the President typically do? It turns out there’s an answer. This is not the first time this has happened. In our nation’s history… 27 times there has been a Supreme Court vacancy that has occurred during a presidential year. And presidents have nominated a justice to fill that vacancy 27 times. It’s what presidents do. It’s actually an easy decision for President Trump’s decision.

By the way, a total of 44 people have been presidents of the United States; half of them have faced this decision. Twenty-two. Half of the people who have served as President have faced this decision, and every single one has nominated.

Now, what has the Senate done? And this is where it’s important to understand why 2016 and 2020 are very different. What the Senate has done is very very different, depending on whether the Senate is of the same party as the President or a different party from the President. Those are radically different. So, of the 27 times there have been vacancies, 19 of them have occurred when the Senate is the same party as the President. Of those 19, the Senate has confirmed 17…. When the President and the Senate are of the same party, the Senate confirms them. On the other hand, what about when they’re different parties? That has happened 10 times in our nation’s history. That happened with Merrick Garland. Barack Obama was a Democrat. There was a Republican Senate. Of the 10 times that has happened, the Senate has confirmed the nominee only twice. 

So there’s a pattern that goes back two centuries.

So, the parties were different in 2016, when Barack Obama appointed Merrick Garland to replace Antonin Scalia after his death, about half a year ahead of the presidential election. In that year, there were two significant differences from this year’s situation: 1) Obama was not running; it was the end of his second term, so he was a “lame-duck” president at that point. 2) The Senate had a Republican majority; Obama did not have the votes to push through that appointment.

So, since it has been traditional and common, even expected that the President will appoint a replacement Supreme Court Justice, why are the Democrats this time claiming the Republicans are breaking the rules? Because they’re partisan, is the short answer. Add to that the rationale given by Senate Majority Leader Mitch McConnell at that time, saying it ought to be up to the voters to decide, by way of the election, since neither candidate was the one making the appointment. He may have meant it was because the parties were different, but it was interpreted as some new rule—a rule proposed, incidentally, by Joe Biden some decades earlier.

I thought that line of rationale was unfortunate in 2016. I was glad they didn’t actually confirm Garland; that would have added tragedy to the loss of Antonin Scalia. But Republicans should have been more honest about it. I would even have been OK with holding hearings and rejecting the nominee, although that wasn’t realistic, considering Kagan and Sotomayor had been accepted almost without opposition.

I believe a justice should only be allowed onto the Court if he/she understands the Constitution and abides by the actual law. We don’t live in an ideal world, however, so we have to use whatever power we have in order to preserve our Constitution and our constitutional republic form of government.

It would make absolutely no sense for a President who has a Senate in his favor to fail in his required duty to appoint just because the opposition says he’s disrespectful to do so. That’s ridiculous. It would be equally ridiculous for a Senate of the same party as the President to hobble themselves because the other side is calling them names—including hypocrite, because of the Garland situation and what was said then.

Can you imagine for a moment that a Democrat president, in his first term’s presidential election year, with a Democrat-led Senate, faces a SCOTUS opening and holds off on making an appointment because he/she might not be reelected? I can’t either. That would never happen. So they’re being disingenuous, at best. Remember, these are the people who called Kavenaugh a serial rapist, not to mention the pain they put Clarence Thomas through, and Robert Bork. These people have no right to determine etiquette among actual civilized people.

Funny thing about the threats to pack the court and expand the Senate: they made those threats months ago. They’re not the result of President Trump's appointing a justice at this time. That is their plan if they win the election, regardless of any action by Trump or other Republicans.

I don’t know much about the actual appointment, Amy Coney Barrett. Almost everything I’ve heard by conservatives is that she’s exceptional, bright, and a textualist (one who reads the actual meaning of the text of the law, rather than making up or construing its meaning), which was Scalia’s philosophy. One exception to that is Robert Barnes, who does a joint livestream with law vlogger Viva Frei on Sunday evenings; he sees her as less exceptional and more attached to stare decisis than constitutional conservatives would hope for. He thinks she’s a plant by the status quo types. I hope he’s wrong. Many people whose judgment I trust (Ted Cruz, Mike Lee, Ben Shapiro) say she is an excellent pick. I think she’s worth praying for, since she does appear to be religious and intending to live a life guided by God.

The Supreme Court should not be this crucial to our freedoms. A particular appointment to the Court should not feel like a matter of life and death for our constitutional republic. Something has gone very wrong that things are the way they are. But it’s one of those messes you just have to go through; keep appointing better judges who actually read and abide by the law, so that they will by definition limit their power.

 

May We Long Celebrate Our Constitution

There’s more to the Constitution. There are four more Articles. But they are brief and procedural. Then there are the Amendments; there are 27. The first 10 are considered the Bill of Rights—not rights granted by the Constitution, but rights spelled out so that, if the people ever forget what is self-evident, they are written in law. (Hint: You can take away our right to self-defense by “repealing” the Second Amendment.) We may talk about those things another day. Our four-part series has been a good celebration of our Constitution for now.

As other nations may say, “Long live the king!” we should be saying, “Long live our constitutional republic!” If we just keep reading our Constitution, to make sure at least some of us understand it, it may yet survive.

Try Reading the Constitution, Part III

We’re doing a series celebrating the US Constitution. See Part I and Part II.

The premise is that you might have had the idea that the Constitution is hard to understand, too much legalistic language as well as too many archaic words. I assert that it’s actually pretty accessible and together maybe we ought to give it another try. So you might want to get out your pocket Constitution to follow along.

Today, we’ll continue the Constitution reading exercise with Article II, pertaining to the executive branch. After the four sections of this article, we’ll cover some problems we’re having with this article.

 

Article II

Article II of the Constitution lays out the powers of the US President, the chief executive officer (CEO) of the United States.

He does not make laws—although he can use his influence to persuade Congress to make certain laws.

He does not make a budget—although he can use his influence to persuade Congress to budget according to his priorities.

Section 1 describes how the President, together with the Vice President, shall be elected. This is where the Electoral College instructions and rules are laid out, which were changed with the Twelfth Amendment in 1804. Then come the requirements to be the president:

·         Must be a natural born citizen.

·         Must be 35 years of age by the time of the election.

·         Must have resided within the United States for 14 years.

That last one means, if a person grew up as a citizen, but lived with parents outside the US, or additionally worked outside the US as an adult, and hasn’t accumulated 14 years living in the US, they can’t run for the office of president. The founders were trying to prevent someone whose allegiance was, either secretly or openly, to another country from using the technicality of citizenship to try to gain power in our country.

Then come the rules for removal from office—for impeachment and conviction of crime, or for death, resignation, or inability (possibly temporary until the disability is resolved). There’s more about this in the 25^th Amendment, passed in 1967.

Next comes information about the president’s compensation. Then there’s the requirement of taking an oath of office, which is:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Section 2 gets into what the President’s duties will include:

·         Be Commander in Chief of the US military and the militia of the several states (the state national guard).

·         Grant reprieves and pardons for offenses against the US (except in cases of impeachment).

·         Make treaties, with advice and consent (2/3 of those present) of the Senate.

·         Appoint ambassadors and other public ministers and consuls, with advice and consent of the Senate.

·         Appoint Supreme Court justices and other officers of the US, with advice and consent of the Senate.

·         Fill vacancies that may happen during the recess of the Senate, which expire at the end of the next Senate session.

Section 3 requires the President to report to Congress concerning the State of the Union. While this can be done in writing or some other way, it has become the traditional State of the Union Address, usually in the first quarter of the year.

And there’s this important statement:

“He shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

He’s going to see to it that the laws are carried out. And he’s going to delegate powers to—that is, commission—the officers to do their assigned work in seeing that the laws are carried out.

Section 4 is one more word about impeachment, which applies to the President, Vice President, and all civil Officers of the United States—which includes federal judges and other appointees. Impeachment is the prosecution part, done by the House of Representatives. The trial on the offense(s) happens in the Senate, where the officer can be removed from office if convicted. Impeachable crimes include “Treason, Bribery, or other high Crimes and Misdemeanors.” That term “high Crimes and Misdemeanors” has been the subject of some debate, although it was clearly understood by the founders. The phrase was intended to include large crimes against the state that might not be labeled as either treason or bribery.

We covered this in more detail last December, when history on this subject was taking place. You can read that here. But, in short, picture a diagram that has a large circle encompassing all serious crimes against the state (nation), inside of which are treason and bribery. So anything that isn’t treason or bribery is included as “high Crimes and Misdemeanors.”

Problems with Executive Power

The Regulatory State

There has been a serious change in the balance of power in recent years. The founders assumed that each branch of power would jealously guard its own power, thus preventing any encroachment by the other branches.

But we’ve had a sort of new, extra-constitutional (that is, beyond the Constitution) branch we might call the regulatory state.

The balance of power has shifted, because laws are being written that cede power from the legislative branch to the executive branch. They delegate sweeping powers to these regulatory agencies to determine the laws, write them as regulations, and enforce them. In addition, they often have power to judge and punish as well.

So many things are wrong with rule by regulatory agency. Its rulers are unelected. Some are experts in particular fields, but mostly they are bureaucrats, administrators, who may not be in touch with the realities of those doing business in that economic sector.

They are granted lawmaking power—the legislative branch’s job—but they’re part of the executive branch. It’s as if the legislative branch said, “You’re smarter than we are; you just do what you think is best. We’re sure you’d never do anything but what is the right decision for everybody.” And then the legislative branch turns their attention to their other assignments, such as doing impeachment investigations.

As we talked about in our post on Article I, legislating is the only main assignment of Congress. In addition, they put out the budget. Although since 2006 they have mainly failed to put out a budget, and have done what is called a “continuing resolution,” which keeps funding everything as it was funded in the previous year’s budget with some set percentage of increase to balance against inflation. In other words, Congress is very busy not legislating or budgeting.

By ceding that power to “the experts,” the legislative branch has greatly increased the power of the executive branch. That hasn’t been a good thing; it has unbalanced the constitutionally designed balance of power. We’ve talked about that in more detail:

·         Regulatory Tyranny, August 26, 2013

·         Red Tape Cutting, May 31, 2018

Executive Orders

There’s another problem with the executive branch: Unconstitutional Executive Orders. This comes under Section 3, where we’re told about the President's duty to faithfully execute the laws and commission officers to do that work.

The purpose of an executive order is to direct the people working under the President concerning how to execute the laws duly enacted by Congress. Executive orders are meant to be procedural. And they must be simply a way to carry out of the laws; they cannot change the laws or create new laws. We have purposely separated powers so that the executive branch does not have lawmaking powers.

The number of executive orders a president gives is not relevant.

For example, If you have a president, say Reagan, who uses executive orders liberally but perhaps not even a single time for any purpose but directing the executive branch in how to keep the law, then you have no executive order problem.

Then, suppose you have another president, say Obama, who less frequently gives executive orders but often as an edict to create law rather than to follow laws set by Congress, then each of those offenses is breaking the law.

Party doesn’t matter. The policy itself—along with its efficacy or intent—doesn’t matter. The color of the president matters not a whit. What matters is the breach of the law.

The President cannot act extralegally. He cannot make law. We do not live in a monarchy, dictatorship, potentate, banana republic, or any other tyranny. We live in a constitutional republic. We have a written law granting only limited enumerated powers to the federal government, so that our God-given natural rights are not infringed.

Can a president act beyond those enumerated powers? Presidents have. But not legally. Presidents have typically gotten away with exertion of power beyond what is granted depending on their popularity.

So the next question is, How do we limit the damage of a president’s acting beyond his authority in direct conflict with Constitutional limits?

The ultimate constitutionally designed response is impeachment. But first there should be other ways, less painful to the nation.

Congress can write legislation to override the executive overreach, so there is no lack of clarity on what the law actually is.

Congress can stonewall the illegal orders. With the power of the purse, which they hold, they can defund anything that relates to executing his orders. They can do targeted defunding—rather than simply refusing to agree to a continuing resolution, for which the shutting down of the government will be blamed on them. It’s easier to target spending in an actual budget, so that’s incentive for Congress to do that basic job.

The Senate could withhold approval of political appointments until the president rescinds his illegal orders. Senator Ted Cruz attempted this back in 2014.

There are also lawsuits. Then-Texas Attorney General (and Governor-elect) Greg Abbott filed a lawsuit in 2014 based on the significant damage to the state caused by the president’s insistence on a porous border.

It may be that courts can suspend the immediate enactment of any illegal order. This usually requires someone with standing (a person, business, or state or local government that has suffered measurable damages) to sue for redress.

Assertion of 10^th Amendment rights by the states could also be a solution.

All of the solutions require political will, which means that many presidents do a political calculation before the intentional overreach.

So, executive orders used as lawmaking continues to be a threat to our constitutional republic.

The question for each executive order isn’t whether the president has the right to give an executive order; he does. The question is whether the order is following the Constitution and merely executing the law as defined by Congress.

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.