The Constitution For The United States
Its Sources and Its Application A
Index Preface Preamble Article I Article II Article III Article IV Article V Article VI Article VII Letter of Transmittal Ratification 1st 12 Amendment Proposals "Bill of Rights" Amend. I - X Amend. XI -XXVII Landmark Court
Missing Original 13th Amendment Constitution History A Quiz for Students
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 Representatives.5
5 "The whole system of the National Government," said President Monroe, speaking of the powers given by the Constitution to Congress, "may be said to rest essentially on the powers granted to this branch. They mark the limit within which, with few exceptions, all the branches must move in the discharge of their respective functions." c86
In the Declaration of Colonial Rights of October 14, 1774, it was said to be indispensably necessary to good government that "the constituent branches of the legislature be independent of each other."
The Congress which had existed under the Articles of Confederation consisted of only one House, which was made up of "delegates . . . appointed in such manner as the legislature of each State shall direct", who might be replaced by others at any time within the period for which they were chosen. A Congress consisting of two houses makes the first fundamental difference between the new Constitution and the Articles of Confederation. In the Constitutional Convention the first resolution adopted declared for a Congress of two Houses.
Section 2. The House of Representatives shall be composed of Members chosen every second Year 6
6 As already noted, the Congressmen under the former government were chosen for one year and were changeable in the meantime at the pleasure of the State.
By an act of the English Parliament in 1694 the term of a member of the House of Commons was fixed at three years. In 1716 the Septennial Act was passed extending the term to seven years. Because it extended the term of the members who passed it instead of applying to future Parliaments, and because it was intended to keep a party longer in power than the time for which the members were elected by the people, some authorities considered it illegal. The Parliament At of 1911 reduced the term from seven years to five.
In France the term of a member of the House of Deputies is four years. A member of the House of Commons in Canada sits for five years, and the term in the Australian House of Representatives is three years.
by the People of the several States 7
7 Emphasis should be here laid upon the fact that ours is the only government in the world in which all the chief constitutional officers of the Executive and Legislative Departments are elected by the votes of the people. It stands unprecedented and unparalleled as a "government of the people, by the people, for the people."
Even in the countries which have closely patterned their governments on our Constitution, the election of officials is not so general. Thus in Canada, Australia, and in South Africa, until the breakup of the British Empire after World War II, the Governor General was appointed by the English Sovereign. In the Republic of France the President is chosen by the Senate and the Chamber of Deputies sitting together as the National Assembly. In Brazil the senators are chosen by the legislature (as ours once were) instead of being elected by the people.
and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State 8
8 The property qualifications of the voters in the different States, as well as other requirements, were so various that it was concluded to let the practice in each State determine who should be qualified to vote for a candidate for a seat in the National House of Representatives. "To have reduced the different qualifications in the different States to one rule," wrote Hamilton in the "Federalist", "would probably have been as dissatisfactory to some of the States as it would have been difficult to the Convention."
No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant 9 of that State in which he shall be chosen.
9 A member of the English House of Commons need not be an inhabitant or even a resident of the district of his constituency.
This limitation had no reference to sex; and therefore it was permissible for a congressional district in a State to elect a woman to a seat in Congress. The first woman thus to be distinguished was Miss Jeanette Rankin of Montana, who was elected to the National House of Representatives in 1916, four years before the adoption of the Nineteenth Amendment 187 gave suffrage to women under both State citizenship (where the State had not already granted it) and National citizenship.
Representatives and direct Taxes 10 shall be apportioned among the several States which may be included within this Union, according to their respective Numbers,
10 Confusion and contention springing from this language brought about the adoption of the Sixteenth Amendment181, which gives Congress power "to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." Indeed, even today (1990) confusion and contention still exist as there is considerable evidence that the Sixteenth Amendment was never properly ratified and that there was indeed fraud in its ratification, "adoption" and implementation.
Although in the Constitutional Convention there was some question of the meaning of direct taxes, Congress early placed an interpretation upon the term by an act (July 14, 1798) "to lay and collect a direct tax within the United States."
A tax of two mills was by the laws mentioned laid on buildings worth from one hundred to five hundred dollars, and this was graduated up as high as ten mills on houses valued at thirty thousand dollars or more. A tax of fifty cents was laid on each slave.
The Income Tax Law of 1864 imposed (with other taxes) a tax on the rent or income from land. But the tax on the income from land was not apportioned among or allotted to the States according to population, as other direct taxes always had been. In 1895, the question having been raised by numerous taxpayers, the Supreme Court held that the tax upon the income from land was in reality a tax on the land itself, and therefore a direct tax which should have been apportioned in accordance with the command of the Constitution. It was also held on rehearing that as in English history, and also in Canadian cases arising under a constitution with a provision like that in ours, an income tax had been treated as a direct tax, it was therefore necessary to apportion the income tax as to incomes from personal property as well as to incomes from land. Fourteen years thereafter the Sixteenth Amendment was proposed by Congress to permit the taxation of income from whatever source derived without apportionment according to the population as ascertained by the census. c55
It is the ratification of the Amendment which is being called into question at this late date, as considerable evidence exists that none of the States properly ratified it, and if so received, was accomplished in a fraudulent manner, without proper signatories and/or approvals by the legislatures of the several States. It has been suggested that there was and is collusion between elected officials, our Government and the "Banking Establishment" for the past 80 years.
which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians, not taxed, three fifths of all other persons. 11
11 Referring to slaves. The word slave or slavery does not appear in our Constitution until we reach the Thirteenth Amendment, adopted (1865) after the Civil War. This is the first of the three "compromises of the Constitution"  and , which have been called the beginning of the Civil War that burst in fury three quarters of a century after. Although slaves were not citizens or voters, the number of them was considered in laying direct taxes and in ascertaining how many members a State should have in the House of Representatives. The fraction "three fifths" had been agreed upon in Congress three years before, when the question was whether, in the levy of direct taxes, slave-holding States would be undertaxed (as Northern men contended) by not counting the slaves as population or overtaxed (as the South claimed) by counting them. The compromise then made as to taxation was employed as to representation in the House. While these compromises were under discussion at Philadelphia the last Congress under the Articles of Confederation, sitting in New York, passed the ordinance creating the Northwest Territory (later Ohio, Indiana, Illinois, Michigan and Wisconsin) and forbidding that slavery ever exist within its limits. Fiske ("Critical Period in American History") says that in 1787 was a cloud no larger than a man's hand. The institution had been dying slowly for fifty years. It had become extinct in Massachusetts and in nearly all other Northern States, and it had just been prohibited in the National domain. In Virginia and Maryland there was a strong party of abolition and the movement had also gained some strength in North Carolina. It was only in the rice swamps of the far South that slave labor was wanted. The slave States, for receiving a disproportionate representation in the House of Representatives on account of their slave population, gave their support in the Convention to the Constitution; and when the abolition of the slave trade was postponed by one clause for twenty years  the South agreed in return to the commerce clause  providing for absolutely free trade between the States. In the Constitutional Convention George Mason of Virginia and other southern delegates spoke severely against slavery.
Virginia contributed to the Union a large part of the Northwest Territory, and delegates from Virginia in Congress under the Articles of Confederation aided in drafting the ordinance which forever prohibited slavery in that domain. The ordinance received the votes of delegates from Virginia, Georgia, South Carolina, and North Carolina, as well as those from Delaware, New Jersey, New York and Massachusetts.
But the invention of the cotton gin, which could clean as much cotton as two hundred slaves, the coming in of spinning machinery, and the availability of westward land in the south changed the course of events. Prior to the invention of the gin, slave labor was wanted or needed only in the rice swamps of the far South. The mercantilism of the North and the profits to be made from cheap land and labor caused a westward expansion of slave holdings in the South and the advent of King Cotton. The fast running streams of the north and the steam engines in England and elsewhere provided the power to run the spinning machinery, the cotton fields and the slaves of the south providing the raw materials for a burgeoning and highly profitable industry.
The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. 12
12 Under acts of Congress a complete census has been taken every ten years, the last in 1990. The census of 1790 showed a total population of 3,929,326, of which 679,681 were slaves. The census of 1990 showed a total of 248,709,873 and the estimated population was 264,506,837 in March 1996.
The Number of Representatives shall not exceed one for every thirty Thousand, 13 but each State shall have at Least one Representative;
13 The number of people entitling a State to have a representative in the lower House of Congress has been changed from time to time after the decennial census. In 1921 each State had one member of the House of Representatives for every 211,877. After the census of 1920 a bill to increase the number of members of the House of Representatives from 435 to 483 was defeated, and in 1921 another bill failed to pass which proposed to increase the number of members to 450. Since that time the number of seats has remained at 435 with each Congressman representing approximately 608,000 persons in 1996.
and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five and Georgia three. 14
14 That would have made a House of sixty-five members, but Rhode Island and North Carolina did not ratify the Constitution until after the new government had gone into effect. In 1996 the House has a membership of 435.
When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies. 15
15 It often happens that the governor of a State must call a special election for choosing a member of the House of Representatives to take the place of one who has resigned or died.
The House of Representatives shall chuse their Speaker 16 and other Officers;
16 So in England, in Canada, in Australia, and in South Africa the presiding officer of the House is elected by the members, and also in the Argentine Republic and in Brazil. In England the Speaker of the House of Commons is to a degree nonpartisan, usually holding office through successive administrations.
and shall have the sole Power of Impeachment. 17
17 The House formulates the charge against the official and reduces it to writing. Then the Senate sits as a court (with the Chief Justice of the United States presiding when the accused is the President) and hears the witnesses and pronounces judgment. It is to be said with pride that there have been but few impeachments in our history. One judge of a United States Court was impeached, tried and removed for drunkenness, another for disloyalty during the Civil War, and a third for conduct not becoming to a judge. A member of President Grant's Cabinet was impeached by the House of Representatives, but as he resigned the Senate did not convict him. In recent times motion was made to impeach President Nixon, but again, as he resigned the Senate did not convict him. On December 15, 1998, President William Jefferson Clinton was impeached by the House of Representatives, H.RES.611, for high crimes and misdemeanors bearing on sexual misconduct, perjury before a grand jury and a civil jury, and misuse and abuse of his high office in obstruction of justice. The Senate vote failed to convict. The question arises that possibly the personal FBI files of the members of Congress, that the Clinton staff had obtained illegally, contained improprieties that were held against some of the Senators as blackmail, enough to sway the vote. We may never know.
The great impeachment was that of President Andrew Johnson, which the House of Representatives brought on February 24, 1868. The President and the Congress had been in passionate conflict over the reconstruction of the southern States which had seceded from the Union and which had been overcome in the Civil War. It was the belief of the President that he, as commander in chief of the victorious army and navy 85 and possessed under the Constitution of the pardoning power 87, which he had exercised toward those lately in hostile arms, should supervise and control the return of the southern States, which had never been legally out of the Union. He claimed to be carrying out the plan of Lincoln. But Congress, insisting that it had the authority, and that as many of the southern States had enacted vagrancy laws and other statutes designed to put the liberated Negro practically in his former state of bondage, it became its duty to effectuate the decision reached by war, passed two Reconstruction Acts over the President's veto. The President denounced the acts as not only unconstitutional but as also indefensibly harsh, especially as they affected a great number of people in the southern States who had been loyal to the Union. In 1867 Congress passed over the President's veto the Tenure of Office Act, which forbade him to remove his appointees to office without the consent of the Senate, which is required by the Constitution to approve  the appointments. That Act of Congress was in disregard of an early congressional interpretation of the Constitutional clause cited and of the practice which had been sanctioned through the administrations of sixteen Presidents. President Johnson transgressed the Act by removing Edwin M. Stanton, Secretary of War, who was openly hostile to the reconstruction policy of his chief. For this the House of Representatives voted articles of impeachment, and from March 5, 1868 to May 16 the Senate sat as a trial court, Chief Justice Salmon P. Chase presiding. The managers of the impeachment failed to secure the two-thirds vote necessary under the Constitution to convict. 24
In messages to Congress President Grant and President Hayes requested the repeal of the Tenure of Office Act. It remained upon the statute book until Cleveland's administration, when (1886) that Executive sternly refused to give to the Senate his reasons for removing an official whose appointment the Senate had of course confirmed. He said it was his duty to maintain the Chief Magistracy "unimpaired in all its dignity and vigor;" and he denied "that the Senate has the right in any case to review the act of the Executive in removing or suspending a public officer." Later (1887) the Tenure of Office Act, which had been the basis of the impeachment of President Johnson, was repealed by Congress.c108
A humorous writer of the day who was opposed to the theories of President Johnson, as expressed in a series of speeches by the Executive, said that the President was trying "to arouse the people to the danger of concentrating power in the hands of Congress instead of diffusing it through one man."
Section 3. The Senate of the United States shall be composed of two Senators from each State, 18
18 It has already been remarked that the Congress under the Articles of Confederation consisted of only one House. The provision of two senators from each State, regardless of size or population, while the population was to determine the number of members in the House of Representatives, was agreed to so that the smaller States might not be overborne in both Houses of Congress by the votes of the larger States. Besides, it was desired that the States as political organizations be represented in Congress. So at loggerheads over this were the large States and the small States, that more than once the Constitutional Convention was at the point of breaking up. Benjamin Franklin was so affected by the disagreement that he suggested that the meetings be opened with prayer. Lord Bryce says that the Americans invented this plan of having one House represent the people directly on the basis of population, and the other (the Senate) represent the States on the basis of State equality as autonomous communities. He believes that it was this device which made federation possible in the United States. The device has been adopted by many other countries.
In 1890 the United States of Brazil followed our example and provided in its Constitution for the equality of the States in the Senate, while the number of members in the Chamber of Deputies is determined by population. Brazil has three senators from each State chosen by the State legislature (as ours were chosen before the adoption of the Seventeenth Amendment in 1913) for a term of nine years, one third of the number going out of office every three years, instead of every two years, as our Senators go out.
In the Commonwealth of Australia, the Constitution (1900) provides for not less than six senators from each the five States, whose term is six years. One half of the senators go out every three years. Parliament may increase the number of senators from each State, but it cannot impair the relationship of the States in the Senate.
chosen by the Legislature thereof 19 for six Years; and each Senator shall have one Vote.
19 Election of senators by the legislatures of the States was superseded by direct election by the people upon the adoption (May 31, 1913) of the Seventeenth Amendment, which should here be referred to 183 and read.
In the Constitutional Convention it was determined to have the States as political bodies represented in the Senate, the people themselves being represented in the other House. As the State itself was to be represented in Congress, it was concluded that the State government (the legislature) could best choose its spokesman. A plan to have senators elected by the House of Representatives was rejected because it "would create a dependence contrary to the end proposed." A plan to have the senators appointed by the President was opposed as "a stride towards monarchy." There were strong advocates of the popular election which the Seventeenth Amendment long after brought about, such as James Wilson of Pennsylvania, who became a Justice of the Supreme Court of the United States.
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one-third may be chosen every second Year; 20
20 As has been said, Brazil and Australia have similar provisions for making the Senate a perpetual body, so that it cannot be made up (as the House may be) entirely of inexperienced members.
and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, 21 which shall then fill such Vacancies.
21 Now, under the Seventeenth Amendment, appointments are made until an election by the people can be held.
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State 22 for which he shall be chosen.
22 See Note 9.
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided. 23
23 A search of the records in 1942 showed that in the course of our history the Vice President had cast the deciding vote in the Senate 188 times, often with respect to the most momentous matters. To August of 1994 this has occurred 234 times. It is interesting to note that the fate of the Nation has hung on the ethics and integrity of one man this many times.
In Washington's administration the vote of Vice President Adams more than once saved the policy of neutrality. On April 22, 1793, President Washington proclaimed, notwithstanding a strong public sentiment for France because of its help to us during the Revolution, that as a state of war existed between France on the one hand, and Great Britain, the United Netherlands, Austria, Prussia, and Sardinia, on the other, he thought it fitting to declare the disposition of the United States "to declare a conduct friendly and impartial toward the belligerent powers" and to exhort and warn citizens carefully to avoid all acts which might in any manner tend to contravene such disposition. It was further stated that any citizen violating the proclamation "will not receive the protection of the United States." Thus was established a policy which has ever since been pursued. (i.e. up until 1922. Such policy has been contravened many times since then) The deciding vote of Vice President Hobart on February 14, 1899, ratifying our treaty with Spain after the Spanish-American War. But, of course, one vote cast in conformity with the Constitution as fully expressed the people's will as though they had all voted so.
Under the Constitution of Canada the Speaker of the Senate is appointed by the Governor General instead of being elected, and a tie vote in the Senate is recorded as a negative and the measure or motion is lost, while in the Canadian House of Commons, which elects its presiding officer, the Speaker casts the deciding vote in case of a tie.
When President Harding took office (1921) he gave Vice President Coolidge a seat at the Cabinet table. Theretofore the Vice President had been practically apart from the executive affairs of the Nation. Of course much of his time is devoted to the Legislative Department as the constitutional presiding officer of the Senate.
The Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of the United States.
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.24
24 The "concurrence of two thirds of the members present" in an impeachment trial may produce widely varying numerical results. To illustrate: in 1922 the Senate has ninety-six members, of whom 49 (a majority) are a quorum for doing business. If the whole membership should be present the two thirds necessary to impeach would be sixty-four. But if only the quorum of forty-nine should be present, the accused might be convicted by two thirds of that number, or by thirty-three.
Judgment in Cases of Impeachment shall not extend further that to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States 25
25 This means that none of the imprisonments, confiscations of property, or degradations of name and family, common under European law, should be known to our system of government. Any law of Congress prescribing punishments upon impeachment beyond those named the Courts would be duty bound to declare void and for that reason to decline to give it effect.
but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. 26
That is, if one be impeached and removed from an office of honor, trust, or profit because of theft or other crime, he will notwithstanding the judgment of impeachment, be liable to punishment for such theft or other crime.
Section 4. The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislatures thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.26a
26a This provision respecting the time and manner of holding elections was not touched by Congress until 1842, when it was enacted that members of the House of Representatives should be elected by districts. Until that time they had been elected by "general ticket", each voter in a State voting for as many candidates as the State was entitled to; but that method gave undue preponderance of power to the political party having a majority of votes in the State, when it might not have a majority in each district.
To prevent the failure of the election of a senator by the legislature, where one House voted for one candidate and the other for another, and they refused to reconcile their differences, Congress directed the two bodies to meet in joint session on a fixed day and required their meeting every day thereafter.
In 1921 the Supreme Court of the United States passed upon the Corrupt Practices Act of Congress of June 25, 1910, which forbids a candidate for a seat in the House of Representatives or for a seat in the Senate to contribute or expend "in procuring his nomination and election any sum, in the aggregate, in excess of the amount which he may lawfully give, contribute, expend or promise, under the laws of the State in which he resides." The defendant was charged with having made use of more money than the law of his State permitted, not in an effort to control a nominating convention or a general election, but in the primary election which has in some States superseded the nominating convention. The decision was that the Act of Congress could not constitutionally include the primary election. The selection of a party candidate who will later run for election "is in no real sense", said the court, "part of the manner of holding the election." However the candidate may be offered -- by convention, by primary, by petition, or voluntarily - "that does not directly affect", said the Court, "the manner of holding the election." The "manner of holding elections for Senators" is the only subject, the Supreme Court held, that the Constitution empowers Congress to regulate.c40
That holding overruled (1941) in a case from a State where there was only one party, making nomination equivalent to election. "The elections for the new Parliament which met in 1768." says Green's "English People", Section 1501, "were more corrupt than any that had as yet been witnessed; and even the stoutest opponents of reform shrank aghast from the open bribery of constituencies and the prodigal barter of seats."
The Congress shall assemble at least once in every Year, 27 and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
27 This rendered impossible such conflicts as existed in England when the King convened and dissolved Parliament at pleasure; and when, in retaliation, Parliament resolved that it could be dismissed only by its own action. During those troublous times the Short Parliament sat three weeks and the Long Parliament over nineteen years.
Charles I ruled England eleven years (1629-1640) without calling a Parliament. He obtained money for his needs by so-called loans from wealthy barons, duty taxes upon ships, which are called tonnage, by many kinds of fines for trumped up offenses, and by reviving monopolies which Elisabeth and other Tudor sovereigns had employed. The hopes of the country were finally raised by the sitting of the so-called Short Parliament, which was abruptly dismissed by the King at the end of three weeks because it would not vote money to carry on a war against the Scots. With England in defection and the Scots invading the North, Charles was driven (1640) "with wrath and shame in his heart" to "summon again the Houses to Westminster." This was the Long Parliament, which lasted for nearly twenty years. This Parliament having determined upon perpetuating itself, Cromwell and his soldiers dissolved it. "But you mistake, sir," said John Bradshaw, "if you think the Parliament dismissed. No power on earth can dissolve the Parliament but itself, be sure of that!" Subsequently it was revived and again expelled. In 1640 it called the election of a new Parliament and then dissolved itself.
As far back as the reign of Edward III (1327-1377) it had been enacted that Parliament "should be held every year or oftener if need be"; but Hallam ("Constitutional History of England") says that this enactment had been respected in no age. A complaint in the Declaration of Independence was that King George III "has dissolved representative houses repeatedly for opposing with manly firmness his invasion of the rights of the people: he has refused for a long time after such dissolution to cause others to be elected."
In 1933 the Twentieth Amendment to the Constitution changed the day of the first assembly of Congress to January 3, two months after the November elections. Increased facility in traveling cut down the time necessary for newly elected representatives to reach Washington. 188
The Canadian Constitution requires a session of Parliament every year, and it forbids that twelve months intervene between sessions, and the like provision is in the Australian Constitution and in the Constitution of South Africa.
In Froisasart's time (1396) it was the custom (Chronicles, Ch.174) for the English Parliament to sit in the King's palace at Westminster for forty days; but as Richard II was going to Calais to marry Isabella of France, he attended only five days and that ended the session.
Until May, 1789, the month after Washington entered upon his duties of as President, the States General of France had not been convened by the King for 175 years. Upon coming together they immediately precipitated the Revolution.
Enough has been stated to make plain what lies back of this clause for orderly and stable government.
Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, 28
28 The English Parliament always claimed this right. After the World War I a member of our House of Representatives was denied his seat on the ground that he had been disloyal to the Republic. Hallam gives as the first instance of record the expulsion from the House of Commons in 1581 of Arthur Hall, a burgess from Grantham. In addition to being expelled he was fined five hundred marks and then sent to the Tower, where it was the intention of the Commons to leave him, but the dissolution of Parliament by the King ended its jurisdiction over him and he was released.
and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior and, with the Concurrence of two thirds, expel a Member 29
29 But that power cannot be extended to outside matters. Thus in 1876 the House of Representatives appointed a committee to inquire into the insolvency of a firm with which the Secretary of the Navy had deposited money of the government. A witness who was called by the committee declined to give names requested or to produce papers. Repeating his refusal when brought to the bar of the House, he was adjudged in contempt and was committed to the common jail, from which he was released by habeas corpus after forty-five days. He thereupon brought an action for money damages against the Speaker of the House and others on the ground of false imprisonment, and Congress paid by appropriation the judgment which he recovered. When the case reached the Supreme Court of the United States it was held that the House does not possess under the Constitution any general power to punish for contempt. While it may punish its own members and pass upon questions of election and some others, the Court said, it was without authority to imprison as it did. Because the United States was a creditor of a man whose business methods were questioned, said the Court, that did not warrant the House of Representatives in subjecting him to the unlimited scrutiny or investigation of a Congressional committee; and the recourse of the government was, like that of any other creditor, an action in a court of law for the recovery of its money. Thus we see how needful to the citizen, even in a republic, are definite constitutional safeguards, and how effectively they are worked out under our system. c54
As late as 1916 the liberty of a citizen was again threatened in a like manner. The House of Representatives issued a warrant for the arrest of a United States attorney in New York for making statements which were considered "defamatory and insulting" and as tending to "bring the House into public contempt and ridicule." After he had been taken into custody by the sergeant at arms of the House he sought release by a writ of habeas corpus, which the trial court denied. The Supreme Court reversed that holding. It referred to the provisions in the early constitutions of the States which were intended "to destroy the admixture of judicial and legislative power" which had been possessed by the Houses of Parliament in England. That blending of power does not exist under our Constitution. For redress on account of slanderous or libelous accusations a member of the House must, like other citizens, resort to a court of law.
Each House shall keep a Journal of Its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; 30 and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.
30 Every word uttered in the House and in the Senate (except executive sessions) is taken down stenographically and appears in print the next morning as the Congressional Record. Each House keeps a journal.
Neither House, during the Session of Congress shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting. 31
31 The reign of Charles II of England (1660-1685) was hardly more remarkable, says Hallam, for the vigilance of the House of Commons against the arbitrary use of authority by the King than for the warfare which it waged against the House of Lords whenever it saw, or thought it saw, a usurpation by that body. In one instance it became necessary for the King to resort to successive adjournments for fifteen months to stop the quarrel between the Houses. A few years later the strife again appeared and the King made peace once more. The provision in our Constitution requires the House of Representatives and the Senate to sit at the same place and to work together. As the Constitution defines quite clearly the powers and duties of each House, the disputes about authority which are blots on English history never occur in the United States. If either House could adjourn at pleasure it might completely obstruct public business and practically destroy a session of Congress. The two Houses must agree upon adjournment, and if they cannot agree the President may 94 adjourn them. But except in case of the inability of the Houses to agree, the President has no control over the adjourning of Congress.
In Canada and Australia the Governors General are empowered by the Constitutions to prorogue (postpone or dissolve) the legislative body or Parliament. In Chile both Houses (Deputies and Senate) must convene and adjourn at the same time. In France the President may adjourn the Chamber of Deputies and the Senate (which must meet at least once each year and continue in session for at least five months) but not for a longer time than one month and not more than twice during one session. In France a meeting of one House when the other is not in session is illegal, except when the Senate sits as a court.
Section 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, 32
32 That is, a bill must be passed by themselves and signed by the President, fixing their salaries.
and paid out of the Treasury of the United States. 33
33 This was another American innovation. In the Parliament of England members had not been paid. The distinction of the office was considered enough. The practice excluded the poor citizen. But members are paid in Parliament now.
As far back as the reign of Henry III (1265) the shires and boroughs paid the expenses of the persons summoned by the King to his Court of Parliament. In the reign of Edward II (1322) the salary of a Knight was fixed at four shillings a day, and that of a citizen or burgher at two shillings a day; but the tax rate for payment ran against the constituents. In the course of time the practice of allowing any compensation passed away. As the Reform Bill of 1832 left the working classes almost altogether without the privilege of voting, a programme was drawn up for numerous reforms, which was named "The Charter", and the movement was called Chartism. One of the things demanded was pay for the members of Parliament. In 1893 and again in 1895 the House of Commons voted by a small majority for an adequate allowance; but in 1906, by a vote of more than three to one, a definite salary of three hundred pounds was fixed. In Canada the members of both Houses receive $2500 a year, with a deduction of $15 for each day absent. In Australia each member receives six hundred pounds a year. In South Africa each member receives four hundred pounds a year, less three pounds for each day's nonattendance. In Argentine each member receives 1060 pounds a year; and in France fifteen thousand francs.
In 1789 the compensation for our Senators and Representatives was fixed at $6 for each day's attendance; in 1815 at $1500 a year, in 1817 at $8 a day; in 1855 at $3000 a year; in 1865 at $5000; in 1871 at $7500; in 1874 it was made $5000; in 1907, $7500; in 1925, $10,000; and now in 1996 it is fixed at $125,000 per year.
Madison thought it an "indecent thing" that congressmen should be empowered by the Constitution to fix their salaries. After the advance of 1815 many of the members of the House were defeated for reelection. The advance of March 3, 1873, affecting the President, the Congress, the Cabinet, the Supreme Court, and some other departments, made on the last day of Grant's first term and operating retroactively "during the term for which he shall have been elected" was denounced by the country as a "salary grab." On January 20, 1874, it was repealed to all "except the President of the United States and the Justices of the Supreme Court" whose salaries the Constitution 82, 98 forbids Congress to reduce.
They shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; 33a
33a This privilege, which is given for the despatch of public business, does not extend to the member's family. Once in England the privilege covered the family, the domestics and the property of the member, in consequence of which creditors and others seeking redress were helpless. In the reign of George III an act of Parliament abolished the privilege as to domestic servants, lands and goods. The charters of the colonies did not mention the privilege. It first appears in this country in the Constitution of Massachusetts of 1780.
and for any Speech or Debate in either House, they shall not be questioned 34 in any other Place.
34 The privilege of having debates unquestioned was denied to members of Parliament in the reign of Elizabeth when they began to speak their minds freely, and they were punished by that ruler and her two successors, but the privilege was soon afterwards firmly established. Hallam says that the single false step by Charles I which made compromise impossible and civil war certain was his attempt to seize five members (Pym, Hollis, Hampden, Haselrig, and Strode) within the walls of the House.
Followed by a body of armed men the King left his palace (1642) at Whitehall, after having told the Queen (Henrietta, daughter of Henry IV of France, and accused of having incited Charles to the rash action) that he would return "Master of my Kingdom", and proceeded to the House of Commons. Apprised of his approach, the House ordered the accused members to withdraw. The King entered and told the Speaker that he needed the chair. Calling for the members wanted and hearing no response, "I see my birds are flown," he said. He went out in defeat, protesting that he had not intended to use force. As he returned he heard everywhere in the streets the cry of "privilege." Macaulay says ("History of England", Vol 1, p. 107) that at the very moment when the subjects of Charles I were returning to him with feelings of affection after a long estrangement "he had aimed a deadly blow at all their dearest rights, at the privileges of Parliament, at the very principle of trial by jury."
No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time 35
35 After a senator's term began Congress increased (1889) the emoluments of our Minister to Mexico. Before the expiration of his senatorial term the President appointed him Minister to that country. The Attorney-General ruled that under this provision he was not eligible.
President-elect Taft selected Senator Knox to be Secretary of State In his cabinet. Then it was found that during the senatorial term of Knox the emoluments of the Secretaryship had been increased by Congress, which rendered him ineligible. Congress thereupon qualified him by reducing the emoluments of the office to what they were before.
One may conceive of great abuses which might arise did this prohibition not exist. Of course, after the term of a senator or a representative has expired, he may accept the office created during his term or the office the emoluments of which were increased while he was in Congress.
and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office, 36
36 But few provisions in the Constitution were more earnestly debated in the Constitutional Convention.
Hallam says that it appears possible that persons in office formed at all times a very considerable portion of the House of Commons in the time (1485-1603) of the Tudors. In the reign of Henry VIII (1509-1547) most of the members of the House of Commons held offices for the appointments to which they were indebted to the King. Parliament, being thus interested, passed and act "releasing the King's highness from all and every sum of money" which the Parliaments or his subjects had given to him "by way of trust or loan." As mentioned elsewhere, the practice of "borrowing" from the rich subjects was a common practice of the kings of those times, but it was stopped with the dethronement of James II and the accepting by William and Mary of the Declaration of Rights of 1689.
Scores of other historical facts might be given to illustrate the meaning lying back of the simple language of this clause. If Congress were to become partly filled with appointees of the President to other offices under the United States, or by holders through election of offices, the independence of the Legislative Department which the Constitution undertook to safeguard would soon be undermined.
It was forbidden by the Articles of Confederation (Art.V) that any delegate in Congress "hold any office under the United States for which he, or any other for his benefit, receives any salary, fees, or emolument of any kind."
So this clause, like many another in the Constitution, took rise from colonial experience.
Section 7. All bills for raising Revenue shall originate in the House of Representatives;37 but the Senate may propose or concur with Amendments as on other bills.
37 That is, money bills must originate in the body then elected directly by the people. Senators have been so elected 183 since 1913. One of the almost irrepressible conflicts between the King of England and the Houses of Parliament was respecting the power of raising money for the support of the King and the conduct of the government.
In a Congress (called the Stamp-Act Congress) composed of delegates from the Colonies a Declaration of Rights was promulgated in New York on October 19, 1765, which said:
"That it is inseparably essential to the freedom of a people and the undoubted right of Englishmen that no taxes be imposed on them but with their own consent, given personally or by their representatives; that the people of these Colonies are not, and from their local circumstances cannot be, represented in the House of Commons in Great Britain; that the only representatives of the people of these Colonies are persons chosen therein by themselves, and that no taxes ever have been or can be constitutionally imposed on them but by their respective legislatures; that all supplies to the Crown being free gifts of the people, it is unreasonable and inconsistent with the principles and spirit of the British constitution for the people of Great Britain to grant to His Majesty the property of the Colonists."
In the Declaration of Colonial Rights of October 14, 1774, the delegates from the several Colonies in Colonial Congress Assembled protested against act of Parliament passed in the fourth, fifth sixth seventh, and eighth years of George III, "which imposed duties for the purpose of raising revenue in America", and they condemned them as measures "which demonstrate a system formed to enslave America."
In the early times in England the House of Lords and the House of Commons made separate grants of supply to the King for the maintenance of the government and himself. Later. as the Commons' proportion of the taxes was greater, that House made the grant with the assent of the Lords. In the reign of Henry VIII the joined in the grants. But in the last Parliament of Charles I the grant recited that it was made by the Commons. Since then that House originates money bills.
The Kings of England always found need for more money than they got from Parliament. Some of the early kings, Henry III (1216-1272) and Edward I (1272-1307), for example, introduced the scheme of granting to their military tenants the privilege of knighthood; but those who wished to decline the honor (costly to maintain) could excuse their absence by a moderate fine. Once in the reign of Elizabeth (1558-1603) and often in the time of James I (1603-1625) this ancient method of raising money without the aid of Parliament was employed.
Another lucrative plan of those two monarchs was to grant exclusive or monopolistic privileges. A monopolist in the making of soap, for example, agreed to pay the King eight pounds in money ($40) on every ton of soap made, in addition to ten thousand pounds ($50,000) for the charter or grant of the monopoly. Almost every necessity was under monopoly, but in 1639 the grants were revoked because of public displeasure. Enormous revenues flowed to the monarch from such sources.
Another device of resourceful royalty was to borrow heavily from wealthy nobles and never (or seldom) pay. It was not often that a wealthy man had the temerity to refuse. Elizabeth always discharged such obligations. In the reign of James I a forced loan of this kind was frustrated by the declaration of the House of Commons that no one be bound against his will to lend money to the King. While such practices were believed to be in violation of Magna Charta (1215), signed by King John, Parliament made the matter certain by requiring James' successor, Charles I, to assent (1628) to the Petition of Right wherein it was said that "no man shall be compelled to make or yield any gift, loan, benevolence to or such like charge without common consent by Act of Parliament; that none be called upon to make answer for refusal so to do." And in 1689 William and Mary accepted the Declaration of Rights, which prohibited the levying of money for the use of the sovereign without the grant of Parliament. Could the King raise money (which provides armies and navies) without the consent of Parliament there might soon be no Parliament. A dispute between Charles I and Parliament involving this money question and some others was carried into civil war and the sovereign's head was severed by the executioner.
Mentioning that in Tudor and Stuart times "the crown was always tending to bankruptcy and always requiring help of Parliament". An English writer (Jenks' "Constitutional Experiments of the Commonwealth", p.39) states: "It might almost be said that the development of the English Constitution is due to the fall in the value of money. It is certain that many of the constitutional crises of English history were brought about by that fact." It has been stated that the value of money in the time of Elizabeth, whose reign ended in 1603, was about 2500 times what it is today.
The foregoing references to historic facts show why the framers of the Constitution so carefully entrusted the raising and expending of public treasure to the representatives elected by the direct vote of the people. But under our clearly defined powers of government conflicts like those of English history have hardly threatened; and as senators also are now elected, discord is very improbable.
A "bill for raising revenue" is one for levying taxes in the strict sense of the word and not one which incidentally brings In money. Thus a currency act of Congress which, to meet expenses, put a tax on notes of banking associations in circulation was held by the Supreme Court not to be a revenue bill which should have originated in the House of Representatives.
Under the Canadian Constitution bills for raising revenue originate in the House of Commons, but not before recommendation buy the Governor General. The Australian Constitution forbids that the Senate either originate or amend money bills.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law." 38
38 That paragraph was designed to prevent any question as to how and by whom a bill may be passed into a law.
Could the House of Commons enact a law without the concurrence of the Lords? Could it do so without the signature of the King? Could both Houses ignore the King and make a law? Could the King prevent at will the taking effect of a bill passed by Parliament? Those were questions which had often stirred England deeply.
A bill returned by the President "with his objections" to the House in which it originated is said to have been vetoed, but the word "veto" does not appear in the Constitution. In most of the colonies the governors had the power to veto legislation and their misuse of it was one of the grievances causing the Revolution. Massachusetts was the first of the original States to grant (1780) the veto power to the governor. This power in the executive officer is carried down in our country to the mayors of cities, who are generally authorized to veto ordinances. It is the popular belief that the interposition of the veto is a salutary (and indispensable) check upon hasty or otherwise objectionable legislation.
Many bills passed by the two Houses of Congress have been vetoed by the President because he regarded them as contrary to some provision of the Constitution, or at variance with the policy or promise of his political party, or against sound financial principles, or as inopportune or injudicious. Although the language of the Constitution "if he approve it he shall sign it, but if not he shall return it with his objections" places no limitation upon the veto power, it has been contended that the President really has authority to veto only bills which he considers obnoxious to some Constitutional provision. Others have argued that the power should be exercised only to prevent encroachments by Congress upon the domain of the Executive. But Madison's writings show that the veto was to be "a check to the instability in legislation, which had been found the besetting infirmity of popular governments, and been sufficiently exemplified among ourselves in the legislatures of the States." Jefferson said that the veto was to protect from invasion by Congress (1) "the rights of the Executive, (2) those of the judiciary, and (3) those of the States and State Legislatures." The first bill (of two) vetoed by Washington (April, 1792) was for apportioning members of the House of Representatives 10 according to population. He believed that the apportionment proposed was unfair. When the bill was returned to the House of Representatives with his objections, "a few of the hottest friends of the bill expressed passion," wrote Jefferson, "but the majority were satisfied, and both in and out of doors it gave pleasure to have at length an instance of the negative being exercised." Adams, Jefferson, John Quincy Adams, Van Buren, William Henry Harrison, Taylor, Fillmore, and Garfield never vetoed a bill passed by Congress. Including regular and pocket vetoes, Washington vetoed 2; Madison, 7; Monroe, 1; Jackson, 12; Tyler, 10; Polk, 3; Pierce, 9: Buchanan, 7; Lincoln. 6; Johnson, 28; Grant, 92; Hayes, 13; Arthur, 12; Cleveland (first term), 414, Benjamin Harrison, 44; Cleveland (second term), 170; McKinley, 42; Roosevelt, T., 82; Taft, 39; Wilson, 44; Harding, 6; Coolidge, 50; Hoover, 37; Roosevelt, F. D., (to Jan. 1 '45), 612.
Except in times of unusual feeling, or when a bill of extraordinary importance has been involved, Congress has but seldom re-passed a measure over the veto by the President. Much deference is shown by the Legislative Department of the government to the opinion of the Executive Department, to which the Constitution commits a share of the law-making power.
But many vetoed bills have been re-passed by Congress and have so become laws despite the veto. Many others Congress has tried to repass and failed because it could not muster a two-thirds vote in each House - not two thirds of the membership of each House, the Supreme Court held (1919), where that claim was made by a citizen affected by a law, but two thirds of the members present, assuming the presence of a quorum or majority necessary to do business. The Reconstruction acts and many others affecting the return of the southern States after the Civil War were quickly passed over the veto of President Johnson as though Congress found pleasure in domination. Generally, however, the power of veto in the President has been a positive quantity in legislation. "A power of this nature in the Executive," wrote Alexander Hamilton in "The Federalist" (No. LXXIII), "will often have a silent and unperceived, though forcible, operation." That statement has been amply justified by experience.
The sovereigns of England, says Bagehot, "must sign their own death warrant if the two Houses send it to them." The King still has legally the veto power, but he has not exercised it since the accession of the House of Hanover (George III, 1714).
The colonists had often felt the evils of slow, uncertain, or capricious legislation. "He (George III) has refused," says the Declaration of Independence, "his assent to laws the most wholesome and necessary, for the public good. He has forbidden his governors to pass laws of immediate and pressing importance unless suspended in their operations, till his assent should be obtained . . . He has refused to pass other laws for the accommodation of large districts of people . . . He has obstructed the administration of justice by refusing his assent to laws for establishing judiciary powers."
Our Constitutional provision has been adopted substantially by many nations. The Constitution of Chile (I833, which has been frequently amended) provides that the President must return the vetoed bill within two weeks; and that the two Houses of Congress may re-pass it by a two-thirds vote. Under the Constitution of Canada (1867) the English sovereign may veto ("disallow") within two years, an act of the Dominion Parliament, even though the Governor General has approved it and it has gone into effect.
The Australian Constitution provides for disallowance or veto by the sovereign within one year of a bill approved by the Governor General. But both in Canada and Australia the Governor General may veto the bill or withhold assent for the sovereign's pleasure. But of course in Australia and Canada there is no way to overcome the obstruction of a veto.
The foregoing references to other constitutions are made to illustrate how widely extended has been the influence of this provision of our constitution for careful and orderly legislation.
Every Order, Resolution, or Vote to which the Concurrence of The Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and, before the Same shall take Effect, shall be approved by him, or, being disapproved by him, shall be re-passed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill. 39
39 That is designed to prevent Congress from ignoring or evading the constitutional prerogative of the President and in disregard of him enacting laws under the guise of orders or resolutions. The historic tendency of one department of government to usurp the functions or prerogatives of another was clearly understood by the authors of the Constitution.
But a resolution proposing an amendment to the Constitution of the United States 129 is not, the Supreme Court has held, an act of legislation, and therefore it need not be submitted to the President for signature.
Although the signature of the President is not necessary to a congressional resolution proposing an amendment, President Lincoln signed a joint resolution "inadvertently", as it was said, proposing a thirteenth Amendment concerning States rights in 1861. 167b The resolution proposing the Fourteenth Amendment was not submitted to President Johnson, who protested on that account, and who said that an Amendment should not be submitted to a State legislature or State convention which had not been chosen by the people since the proposal to amend was made.
Section 8. The Congress shall have the Power 40
40 By this section the Sovereign People, in Whom resides All Authority, conferred upon Congress exclusive power to deal with twenty subjects properly within the sphere of National authority; and they concluded by authorizing it to make all laws necessary to effectuate those powers. Under the Articles of Confederation the State, which "retains its sovereignty, freedom, and independence", exercised too many such powers. In trade and commerce, and in other ways, the States treated one another as foreign countries, imposing duties and other taxes and enacting much selfish legislation. After 132 years of experience it would be difficult to improve upon the following enumeration of National powers. Every constitution that has been drawn since, those of France, Switzerland, Chile, Brazil, Argentine, New Zealand, Canada, Australia, South Africa, and others, have followed quite closely this chart of legislative National powers. It will be at once interesting and useful to study this section in detail!
To lay and collect Taxes, Duties, Imposts and Excises, 41
41 Reference has been made 10 to the failure in operation of the "common treasury" created by the Articles of Confederation, which was to be "supplied by the several States." Often a State failed to provide its supply and of course the National Government was thereby hampered and sometimes crippled. Now the Nation would raise necessary money itself. In the Constitutional Convention there was question of the meaning of "duties", "imposts" and "excises." The comprehensive word "taxes" would have been enough. By the use of that language the purpose was manifested to authorize the Nation to raise needed money by any of the known methods of taxation -- "a power of vast extent", wrote President Monroe, "not granted by the Confederation, the grant of which formed one of the principal inducements to the adoption of the Constitution."
In the enumeration of the National powers the first named in the original draft and in the suggestions brought before the Constitutional Convention was the power to lay taxes and raise money. "Money is one of the essential agencies of Government," wrote Hamilton. "Without it no Government can exist, and without the power to raise it, it cannot be had."
While the direct break with England was caused by taxation, by the Stamp Act of Parliament (1765), which required the use in the Colonies of paper bearing costly stamps for notes, bonds, deeds, wills and other documents, the frame of mind to revolt had been developed in the colonists by over a century of oppressive legislation. colonial commerce had been hindered by the Navigation acts of 1660 and 1663, requiring that buying and selling be done in England and that goods be moved in English ships; by the Act of 1732, prohibiting trade in woolens among the Colonies, a trade which was growing rapidly; by the Molasses Act of 1733, placing a duty or tax on all rum, molasses and sugar imported into any English colony, a heavy blow to a great trade with Spanish possessions; by the Act of 1750, prohibiting the sending of pig iron to England and forbidding the manufacture of certain iron articles at home, a manufacture which had already become important; by the Sugar Act of 1764, restricting trading with the West Indies in lumber, food stuffs, and other articles; and by an act in the same year legalizing writs of assistance, by which revenue officers of the Crown (seeking to prevent smuggling in violation of the restrictive laws) made searches and seizures and were empowered to call citizens to their aid. When, therefore, the English Government attempted by the Stamp Act to impose upon the Colonies a part of the tax burden of the French and Indian War (the name of the American section of a world-wide engagement between England and France), after they had spent eleven million dollars and given up thirty thousand lives, the step was denounced in a Colonial Declaration of Rights (1765) by a Continental Congress as part of a policy "to enslave America." That declaration said that as the colonists were not represented in Parliament, and by reason of distance could not be, no tax by Parliament could be imposed upon them. That could be done only by their elected representatives in the colonial assemblies or legislatures.
to pay the Debts and provide for the common Defence and general Welfare of the United States; 42
42 Answering fierce objections that "general Welfare" left Congress without restraint in taxing and spending, Madison wrote in the Federalist that only as to subjects covered by grants of power in this section -- none being for aid to individuals -- could Congress spend.. Yet the Social Security Act of 1935, taxing employers and employees to provide funds for old-age pensions, was upheld under this Clause by the Supreme court. c100
President Monroe vetoed a bill for the improvement of the Cumberland Road because he did not believe the work to come within this clause. President Jackson for the like reason, vetoed every bill for public improvements that was not clearly for National welfare, as distinguished from local or State advantage. "We are in no danger," said he, "from violations of the Constitution from which encroachments are made upon the personal rights of the citizen . . . . But against the dangers of unconstitutional acts which, instead of menacing the vengeance of offended authority, proffer local advantages and bring in their train the patronage of the government, we are, I fear, not so safe."
River and harbor bills were vetoed by Presidents Tyler, Polk, Pierce, Grant, Arthur, and Cleveland. A bill appropriating $19,000,000 was passed over President Arthur's veto in 1882, and a bill which President Cleveland vetoed in 1896, appropriating $80,000,000, was re-passed by Congress. The Presidents regarded the appropriations as largely for local rather than National Purposes, and therefore, as President Arthur put it, "beyond the powers given by the Constitution to Congress and the President." Declaring that when the citizens of one State found that money of all the people was being appropriated for local improvements in another State they naturally "seek to indemnify themselves . . . by securing appropriations for similar improvements," he concluded:
President Cleveland deplored "the unhappy decadence among our people of genuine love and affection for our Government as the embodiment of the highest and best aspirations of humanity, and not as the giver of gifts."
It is a question under discussion today whether the desire of communities and States to share in congressional appropriations from the National treasury has not operated to extend unconstitutionally National power and weaken correspondingly the constitutional authority of the States.
On this subject President Harding said in 1921:
"Just government is merely the guarantee to the people of the right and opportunity to support themselves. The one outstanding danger of today is the tendency to turn to Washington for the things which are the tasks or the duties of the forty-eight [now fifty] commonwealths."
but all Duties, Imposts and Excises shall be uniform throughout the United States; 43
43 This prevents preference to one State or locality to the prejudice of another. Otherwise, such oppressive inequalities might exist as to affect the pursuits and employments of the people. The agriculture of one State or section might be heavily burdened to the upholding of that in another. So of commerce. So of manufacturing. The rivalries of States under the Articles of Confederation had taught a lesson.
To borrow Money on the credit of the United States; 44
44 In addition to raising funds by the various forms of taxation shown in the preceding paragraph, Congress is authorized, when the present resources of the Nation are insufficient, to borrow on its credit -- that is, to raise money upon the resources and paying power of future years. Even if sufficient funds could be raised at once for a war or other great emergency, it would not be fair to lay the burden wholly on the present generation. Therefore Congress raises part of the needed funds by heavy income taxes, by stamp taxes on many kinds of sales and other transaction, and by various sorts of special taxes devised for the emergency and removed when it has passed. But it transfers a part of the burden to future generations by the issue of bonds, which are like the promissory note of a person, a simple statement that at a time named the United States will pay to the bearer a specified amount of money, with interest paid twice a year in the meanwhile. The people at large buy these bonds as an investment, but the taxes out of which the Nation finally pays the holder of the bond or note are collected in later years and generally from a later generation.
The last of the Civil War debt was retired in 1934. As of June 30, 1919 the Treasurer of the United States reported the estimated gross cost of World War 1 as $30,177,000,000. The debt for World War II is placed at around $275,000,000,000.
The Articles of Confederation forbade Congress to borrow money or "emit bills" unless "nine States assent to the same." It was too often impossible to secure the support of that many. Hence this National power in our Constitution, which is entirely independent of State will.
In the Constitutional Convention the words "or emit bills," following the word "money" in the foregoing clause, were stricken out. Bills of credit or paper money had been the bane of the Confederation and the States. Madison raised the question whether it would not be enough to forbid that such bills be made a legal tender, that is, equivalent to gold or silver coin. He thought it would check the paper-money evil. Seventy-five years thereafter (February, 1862) the question stirred the country when Congress issued $150,000,000 of paper money known (because of the color) as "greenbacks," which were made "a legal tender in payment of all debts, public and private, within the United States." A woman who had before the passage of the Act become bound to pay a stated number of dollars in what was at that time the money of the United States tendered "greenbacks" (worth less than coin), which were refused. When the case reached the Supreme Court of the United States, Salmon P. Chase, who as Secretary of the Treasury in Lincoln's Cabinet had advocated the Law, had been made Chief Justice. In an opinion written by him (upon fuller study, as he explained) the Act (and one of 1863) was held (1869) beyond the constitutional power of Congress, the chief ground being that the power of Congress can not be implied, and that the acts of Congress could not apply to debts contracted before their passage. Soon after the Greenback Case was decided, the Supreme Court was enlarged 97 from seven judges to nine. In 1872 two similar cases were disposed of by the Court, one involving a debt contracted before the acts of Congress and one an obligation arising subsequently thereto. The Supreme court overruled its decision in the first case and held that the war powers granted to Congress 55,56 by the Constitution warranted the legislation.
Next the question came up whether Congress could issue legal tender money in time of peace, as well as in time of war. In 1878 it passed such an act. The other cases had been rested by the Supreme Court on the war power of Congress. It was believed by many that the Supreme Court could go no further. But in the last Legal Tender Case (1884) it held that, when the exigency is so great, owing to "unusual and pressing demands on the resources of the government, or the inadequacy of the supply of gold and silver," that it is expedient to resort to such means, the question of exigency is political and not judicial, and therefore to be determined, not by the courts, but by Congress. The Court said that "the power to make the notes of the Government a legal tender in payment of private debts" is "one of the powers belonging to sovereignty in other civilized nations." Therefore, as the power is not withheld from Congress in the Constitution, the existence of it is necessarily implied. This legal tender paper, after being in use seventeen years, during which it was below the value of gold coin (it requiring at one time $2.85 of paper money to equal one dollar of gold coin), was redeemed, beginning January 1, 1879, under "an Act to provide for the resumption of specie payments" passed in 1895 and directing the Secretary of the Treasury to "redeem, in coin, the United States legal-tender notes then outstanding on their presentation for redemption." Prices and wages had been so high during the time of paper money that the Greenback Party was organized in 1874 to oppose the resumption of specie payments.
In 1921 the Supreme Court, following the foregoing case, upheld an act of Congress creating a Federal Land Bank in each of the twelve districts into which it divided the United States. In addition to providing "capital for agricultural development" the plan was "to create government depositaries and financial agents for the United States." The latter undertaking was clearly within National power.c46
The foregoing history is detailed as one of the almost countless illustrations of the expansiveness of our Constitution and practical construction which the Supreme Court has employed to fit it to "new occasions" and "new duties."
Not withstanding the redemption in specie of the paper money of the Civil War, the Act of Congress of February 25, 1862, as revised down to March 3, 1863, is still effective, declaring that "United States Notes shall be lawful money, and a legal tender in payment of all debts, public and private, within the United States, except for duties on imports and interest on public debt." It must be here noted that Federal Reserve Notes (FRNs) are only in the form of a note, no longer a promissory note, having no provision for redemption in lawful money, and are sustained in value as MONEY only by COMMON USAGE and BELIEF. It is true FIAT MONEY. The New $100 "off center" Franklin bill issued in 1998 and the other "offcenter" bills issued since are no longer even against a Federal Reserve Bank, the Seal is that of the Federal Reserve System. (It has been said that both Presidents Lincoln and Kennedy were assasinated for attempting to issue non-interest bearing United States Notes in contravention of the bankers and the Federal Reserve System.) See "Jefferson's Prophesy".
To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes; 45
45 This is called the commerce clause, second in importance to no other provision in the Constitution. The delegates to the Constitutional Convention from the Southern States voted for it in return for the first clause of Section 9 61, which the delegates from the North accepted in the belief that slavery was already going out and would soon be extinct.
This clause put an end to the taxes, duties, and other burdens which the States had imposed under the Articles of Confederation upon one another's trade and activities. A writer on the Constitution, who served as Justice of the Supreme court and therefore had an unusual opportunity to observe. expressed the opinion that were it not for the commerce clause the States would long since have wrecked the Union.
The commerce clause has been a barrier to the activities of States in more that two thousand cases that have reached the courts of last resort in the several States and the Supreme Court of the United States. Tax Laws, license laws, and regulative laws of infinite variety enacted by State legislatures have been held invalid under this clause as interfering with the free flow of interstate commerce. And so of State statutes intended to promote local prosperity, such as an act prohibiting pipe-line companies from transporting except between points within the State. c21, c102
After the Constitution was adopted, and while it was before the conventions of the States for ratification, Washington wrote to Lafayette that his own State had recently tried to pass "some of the most extravagant and preposterous edicts on the subject of trade" that had ever been written. Under the Articles of Confederation Rhode Island met all its expenses out of the duties which it levied at one port on the commerce entering from other States. Necessaries paid oppressive duties before entering New York City. Examples of this kind are too many to be enumerated.
But with years and experience the belief has grown that while the citizen of a State may naturally favor development at home, the same person as a citizen of the Nation must take into account the welfare of all the States. The advancement of a State is a National as well as a local benefit, and the advantages of that advancement should not accrue to the State alone.
The commerce clause is said to have been suggested by James Monroe of Virginia, afterwards President, who believed National regulation "necessary to preserve the Union; without it, it will infallibly crumble to pieces." As a member from 1783 to 1786 of the Congress under the Articles of Confederation, he endeavored to secure for Congress the power to regulate commerce and thereby remove what he considered the chief defect in the existing government.
Commerce, said the Supreme Court, in an early case, "comprehends traffic, trade, navigation, communication, the transit of persons, and the transmission of messages by telegraph -- indeed, every species of commercial intercourse." c19
In 1887 Congress, in pursuance of this clause, passed the Act to Regulate Commerce, commonly called the Interstate Commerce Law. It has been frequently amended and improved as experience has suggested. Railway lines, steamship lines, express companies, oil pipelines, telegraph lines and telephone lines, and wireless transmission of messages are brought within the control of the Interstate Commerce Commission, a tribunal now (1940) grown from three to eleven members, created by the Act with power to prescribe what charges the public shall pay and with authority otherwise to regulate the business practices of railway companies and others engaged in interstate commerce.
In 1890 Congress enacted under this clause the Sherman Anti-Trust Law, providing heavy penalties for the offense of conspiring to prevent competition among merchants and others moving commodities in interstate commerce. That was supplemented by the Clayton Law of October 15, 1914; and on September 26, 1914, the Federal Trade Commission Law, to prevent "unfair methods of competition in interstate commerce," was passed.
In 1933 the National Industrial Recovery Act was passed to regulate commerce under this Clause by removing obstructions to its free flow, and by providing for organization of industry for cooperative action among trade groups. A "national emergency productive of unemployment and disorganization of industry" was declared to exist. The President was authorized to approve "codes of fair competition" upon the application of "one or more trade or industrial groups." When a code was approved by him, disregard of it was punishable by a fine of $500 for each day of non-observance. For violation of the Code of Fair Competition for the Poultry Industry slaughterers of poultry for New York City were convicted and fined. The Act of Congress was held unconstitutional by the Supreme court (1) as a delegation of legislative power "to trade or industrial groups," and (2) as a regulation of transactions "not directly affecting interstate commerce." c73
In 1937 the National Labor Relations Act of 1935 was sustained by the Supreme Court as valid regulation under the Commerce Clause. It recited that the denial by employers of the right of workers to organize and bargain collectively led to strikes and other forms of unrest necessarily obstructing interstate commerce. Congress therefore asserted the power to remove those conditions through orders of the National Labor Relations Board. c74
Australia was quick to put a commerce clause in its Constitution (1900) and thus end as to the new States of the Commonwealth the burdens and exactions which as provinces they had imposed upon one another. Brazil had made (1890) its federal government supreme over commerce, as Canada had done twenty-three years before. In short, it may be said that all important constitutions have followed ours by introducing a clause to prevent the States from interfering with commerce.
To establish an uniform Rule of Naturalization, 46
46 A complaint against George III in the Declaration of Independence was that "he has endeavored to prevent the population of these States, for that purpose obstructing the laws for the naturalization of foreigners, and refusing to pass others to encourage their migration hither." On the day of the signing of the Declaration of Independence the Continental Congress passed a resolution that "all persons abiding in any of the United Colonies and deriving protection from the laws of the same owe allegiance to said laws, and are members of such Colonies." That Resolution governed until the Articles of Confederation went into effect on March 2, 1781, the fourth of the Articles providing that "the free inhabitants of each of these States -- paupers, vagabonds, and fugitives from justice excepted -- shall be entitled to all the privileges and immunities of the free citizens in the several States." That enabled the States to affect citizenship in one another and much confusion resulted. Hence the provision in the Constitution for National and uniform control.
In Washington's first message to Congress (or, rather, first annual address, for his message was oral) he recommended "that the terms on which foreigners may be admitted to the rights of citizens should be speedily ascertained by a uniform rule of naturalization." That Congress passed a law and there have been many supplemental enactments and revisions since. It was then assumed by the Government of the United States that the citizen of one country could cast off allegiance at pleasure and declare fealty to another government; but most European governments did not permit this, although some did. Thus, in "Burnet's History of His Own Times" he says that James II of England asked the States of Holland to surrender him to face a charge of treason, but that he, "being a subject of Holland (for I was Naturalized), claimed their protection." Our War of 1812 with England was caused in part by its claim that, notwithstanding naturalization in the United States, it could take English-born seamen from our ships to serve in its defense against Napoleon. The American doctrine, laid down by Daniel Webster, Secretary of State to Presidents Harrison, Tyler and Fillmore, was that the flag of the ship protects the crew and determines their nationality. Great Britain had always claimed the right to raise both land and naval forces by compulsion. Men were seized wherever found and often their relatives never knew what had become of them. Although the Treaty of Ghent, which closed the War of 1812, left this question unmentioned, the English Government never again seized men; but it insisted upon the right forcibly to visit and search our ships in time of peace until President Buchanan sent (1858) our navy to the Gulf of Mexico to stop it. In the proclamation issued by George III in 1807, two years after the great naval battle of Trafalgar, in which the English fleet under Nelson overcame Napoleon I on the sea, all men born under the English flag were called home from all lands and they were warned that no foreign letters of naturalization could in any manner divest natural-born citizens of allegiance to the English Government or release them from duty. It was not until the thirty-third year of the reign of Queen Victoria (1870) that England came to the American viewpoint respecting this subject, when the British Government entered into a treaty with the United States providing that naturalized subjects in each country should be treated in all respects as natives. In pursuance of the treaty a Naturalization Act was passed in that year by Parliament under which aliens who became naturalized were authorized to hold property (except British ships) as if they were natural-born subjects, after a residence of five years, or after service to the Crown. The Act authorized a subject of the British Government to expatriate himself by becoming naturalized in a foreign country. Down to that time the rule of English law was that no one could renounce the country or allegiance in which he was born.
A legal change of citizenship probably arose with the Romans. Roman citizenship was at first confined to the city. Gradually it was extended until it included Italy. From that it was widened to favored provinces. Gibbon mentions in his "Decline and Fall of the Roman Empire", Vol.I, ch.vi, that the Emperor Caracalla (A.D. 222-235), "communicated to all the free inhabitants of the Empire the name and privileges of Roman citizens." The provincial considered it a great distinction to have the protection of Roman citizenship. In a dramatic scene in the New Testament (Acts XXII, 24-29) St. Paul claims the protection of the Roman citizenship in which he was born.
Under our laws an alien of the age of eighteen may declare his intention to become a citizen of the United States. This declaration must be made two years before he becomes a citizen. Not more than seven years thereafter he must file a petition for naturalization, signed by him, and containing full particulars of his personal history. He must state that he is not a disbeliever in or opposed to organized government, that he is not a member of or affiliated with any organization so opposed, and that he is not a polygamist. In this petition he must repeat his first declaration that it is his intention to become a citizen, to reside permanently in the United States, and to renounce absolutely all allegiance or fidelity to any other government.
In addition to naturalization under the "uniform rule"of the Act of Congress, aliens have been made citizens by treaties, as was done by the Treaty of Guadaloupe Hidalgo for all those in the territory acquired from Mexico; and when Texas was admitted to the Union by joint resolution of Congress its inhabitants were thereby naturalized.
Where a naturalized citizen returns to his native country within five years, or goes to any other country for permanent residence, that is taken as prima facie evidence of his lack of intention to become a citizen, and his certificate will be therefore canceled. This provision was enacted by Congress, following messages of President Grant showing that aliens had taken our certificates of naturalization and then returned to their native country or gone to some other country and made use of the certificates to protect them against military service and in other ways.
While our States have no jurisdiction over naturalization as it affects citizenship alone, most of them have legislation enactments touching on the status of the alien in the ownership of land, or in the right to inherit property or to transmit it to his heirs. In some States aliens may hold and transmit property as if they were native citizens. In other States aliens may hold land only for a limited time, when they must dispose of it. The regulations of the various States are numerous. In some States the alien who has declared his intention to become a citizen is permitted to vote for candidates for minor offices. Since World War 1 this privilege has been revoked in at least one State.
In the first Act of Congress (1790) under this clause "a free white person" was declared eligible to naturalization. Except for a short time the quoted words have remained in the law. Confusion came because different courts understood the words differently, some as including Caucasians, and others only embracing Aryans. The Supreme Court held (1923) that a "white person" describes not an Aryan or a Caucasian (names of doubtful scientific value), but an immigrant of the stock of Europe.
Under an act of Congress passed in 1906 providing for the cancellation of a certificate of naturalization on the ground of fraud in its procurement many certificates were revoked during World War 1 because the sympathy shown by the naturalized persons for the nations at war with the United States proved that when they renounced allegiance to their former governments and swore that they would defend the United States, they had acted fraudulently. c2, c77
and uniform Laws on the subject of Bankruptcies throughout the United States; 47
47 The Articles of Confederation did not deal with the bankrupt. The word originally applied to one who defrauded his creditors. Now it means one who is unable, for any reason, to pay them.
On July 1, 1898, a bankruptcy law was enacted which (with amendments) has been in effect ever since. While an act of a Congress is in effect the law of a State on bankruptcy is necessarily suspended because the Constitution makes the National law uniform "throughout the United States."
One becomes a voluntary bankrupt by filing a petition in a United States District Court and turning over all of his possessions (except exempted property, like the homestead, or the tools of a workman) for division among his creditors. If no fraud appear he will be released from his debts, except those to a municipality, except as to credits which he secured on fraudulent pretenses, except alimony, and except one or two other obligations. A creditor may file a petition against a debtor and place him in involuntary bankruptcy when he believes that a debtor is making away with property or favoring other creditors, and for some other reasons; and then the court takes immediate possession of the debtor's assets and protects them for the benefit of all creditors. The law therefore operates to the advantage of both the debtor and the creditor.
The bankruptcy or insolvency law of a State cannot, the Supreme court held (1819), discharge a debtor in that State from his previously incurred liability of pay, as the Constitution forbids 71 the State to impair the obligation of a contract. The State law under consideration in that case was designed not only to liberate the debtor from prison, but also to discharge him from all contractual liability. Later the court held (1827) that such a State law does not impair the obligation of future contracts. In such circumstances the creditor contracts with full knowledge of the possibility of the debtor's insolvency. And as the law of a State can have no extraterritorial effect (that is, operate directly in another State), the discharge of a debtor by the insolvency law of his own State does not, it has been held (1891), release him (even as to future contracts) from an obligation to a creditor who is a citizen of another State and who has not submitted himself in the jurisdiction of the courts of the State in which the insolvency law was passed and applied. c8, c9, c10, c11
Much difference of opinion prevails as to the value or the justice of the National Bankruptcy Act, some believing it to be not only a shield but also an inducement to dishonest men. The provision in the Constitution undoubtedly came from the rigor with which unfortunate debtors were once treated and were dealt with down to the time of it's adoption. In President Jackson's annual message of 1829, and again in his message of 1831, he recommended the discharge from imprisonment of debtors to the Government where no fraud had been practiced in incurring the debts. "The continuance of the liability after the means to discharge it have been exhausted," said he, "can only serve to dispirit the debtor . . . . The personal liberty of the citizen seems too sacred to be held, as in many cases it now is, at the will of the creditor to whom he is willing to surrender all the means he has of discharging his debt." While the Constitution of Pennsylvania of 1776 was about to open the prison doors of debtors, it was not until 1827 that a general agitation was begun in this country to abolish imprisonment for debt. Such imprisonment is forbidden in many States except in cases of fraud.
An act of Congress of 1839 (with revisions) forbids imprisonment by a Federal Court where imprisonment for debt has been abolished by the law of the State in which the Federal Court is sitting. It had been held by the Supreme Court of the United States (1823) that a debtor who had been discharged under a law of New York (1819) abolishing imprisonment for debt was not entitled to release from imprisonment on a judgment rendered against him in favor of the United States.
One Hebrew law (Deuteronomy XV) requires that "every creditor shall release that which he hath lent unto his neighbor" in the general release which was commanded "at the end of every seven years." But historians point out that the Hebrew laws of leniency were frequently if not generally disregarded. Thus Jesus spoke (Matthew XVIII, 23-25) of the king's servant who owed a heavy debt and who was ordered "to be sold, and his wife, and children, and all that he had, and payment to be made." Two sons of a widow were released from bondage for a small debt by a miracle performed by Elisha.
Gibbon says ("Decline and Fall of the Roman Empire", Vol. IV, p.505) that under the Roman law of the 500's a debtor night be either sold to slavery or put to death. In "Little Dorrit" the harsh treatment of the debtor in England down to late years is portrayed by Dickens. "When the fortress [Bastille] was taken" says Dicey, "there were not ten prisoners within its walls; at that very moment hundreds of debtors lanquished in English gaols."
It was the unhappy lot of the debtor in England that impelled James Oglethorpe, who as a member of Parliament had served on a committee to investigate conditions in prison, to found (1753) in the reign of George III the Colony of Georgia for the relief of such unfortunates.
At the time our Constitutional Convention was sitting the Congress acting under the Articles of Confederation erected the Northwest Territory (now Ohio, Indiana, Illinois, Wisconsin, and Michigan) and in the ordinance or act provided for imprisonment for debt. The first Congress under the new Constitution confirmed the ordinance.
To coin Money, regulate the Value thereof, and of foreign Coin,48
48 Prior to the establishment of the Constitution and the Republic, early America primarily used foreign coinage. Under the Articles of Confederation the states were permitted to coin money, but Congress had the power to regulate the value of the state coinage. Because this clause of the Constitution gives Congress jurisdiction over coinage and the value of coins, and because Section 10 of the same Article 71 forbids the State to "make anything but gold and silver coin a tender in payment of debts", it was argued in the Legal Tender Cases arising out of legislation during the Civil War, that it was the purpose of the people in their Constitution to put an end to the misuses and abuses of paper money as they had known them. But it was answered that the prohibition of the making of "anything but gold and silver coin a tender in the payments of debts" stand in the Constitution, not against the Nation, but against the State. The Supreme Court held that the necessities of the Nation, which are to be determined by Congress, must control. 44
On March the 4th of 1933, Franklin Delano Roosevelt was inaugurated as President of the United States. Referring to his inaugural address, which was given at a time when the country was in the throes of the Great Depression, we read:
"I am prepared under my constitutional duty to recommend the measures that a stricken nation in the midst of a stricken world may require. These measures, or such other measures as the Congress may build out of its experience and wisdom, I shall seek, within my constitutional authority, to bring to speedy adoption. But in the event that the Congress shall fail to take one of these two courses, and in the event that the national emergency is still critical, I shall not evade the clear course of duty that will then confront me. I shall ask the Congress for the one remaining instrument to meet the crisis broad Executive power to wage a war against the emergency, as great as the power that would be given to me if we were in fact invaded by a foreign foe."
On March the 5th, President Roosevelt asked for a special and extraordinary session of Congress in Proclamation 2038. He called for the special session of Congress to meet on March the 9th at noon. And at that Congress, he presented a bill, the Act of March 9, 1933, to provide for relief in the existing national emergency in banking and for other purposes. Members of the Congress, while not provided with adequate floor copies of the legislation, relying primarily on the reading of the proposed act by the Speaker and with no time to study or discuss the Act, within 40 minutes were stampeded into passing it, giving to the President unprecedented power, amounting to, in essence, that of an "unconstitutional dictatorship"
In opposition to the Act and a subsequent Farm Bill, Congressman Beck, speaking from the Congressional Record, stated:
"I think of all the damnable heresies that have ever been suggested in connection with the Constitution, the doctrine of emergency is the worst. It means that when Congress declares an emergency, there is no Constitution. This means its death. It is the very doctrine that the German chancellor is invoking today in the dying hours of the parliamentary body of the German republic, namely, that because of an emergency, it should grant to the German chancellor absolute power to pass any law, even though the law contradicts the Constitution of the German republic. Chancellor Hitler is at least frank about it. We pay the Constitution lip service, but the result is the same."
Congressman Beck is saying that, of all the damnable heresies that ever existed, this doctrine of emergency has to be the worst, because once Congress declares an emergency, there is no Constitution. He goes on to say:
"But the Constitution of the United States, as a restraining influence in keeping the federal government within the carefully prescribed channels of power, is moribund, if not dead. We are witnessing its death-agonies, for when this bill becomes a law, if unhappily it becomes a law, there is no longer any workable Constitution to keep the Congress within the limits of its Constitutional powers."
In the enabling portion of that Act , it states:
"Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That the Congress hereby declares that a serious emergency exists and that it is imperatively necessary speedily to put into effect remedies of uniform national application."
In the Act of March 9, 1933, it further states in Title 1, Section 1:
"The actions, regulations, rules, licenses, orders and proclamations heretofore or hereafter taken, promulgated, made, or issued by the President of the United States or the Secretary of the Treasury since March the 4th, 1933, pursuant to the authority conferred by subdivision (b) of Section 5 of the Act of October 6, 1917, as amended, are hereby approved and confirmed."
In Section 2 of the Act of March 9, 1933 "Subdivision (b) of Section 5 of the Act of October 6, 1917 (40 Stat. L. 411), as amended, is hereby amended to read as follows;"This exact wording is now contained in Title 12, USC 95 (a)
"During time of war or during any other period of national emergency declared by the President, the President may, through any agency that he may designate, or otherwise, investigate, regulate, or prohibit, under such rules and regulations as he may prescribe, by means of licenses or otherwise, any transactions in foreign exchange, transfers of credit between or payments by banking institutions as defined by the President and export, hoarding, melting, or earmarkings of gold or silver coin or bullion or currency, by any person within the United States or anyplace subject to the jurisdiction thereof".
The language in Title 12, USC 95 (b) is exactly the same as that found in the Act of March 9, 1933, Chapter 1, Title 1, Section 48, Statute 1.
º 95b. Ratification of acts of President and Secretary of Treasury under section 95a The actions, regulations, rules, licenses, orders and proclamations heretofore or hereafter taken, promulgated, made, or issued by the President of the United States or the Secretary of the Treasury since March 4, 1933, pursuant to the authority conferred by section 95a of this title, are approved and confirmed.
The Act of March 9, 1933, is still in full force and effect today. We are still under the Rule of Necessity. We are still in a declared state of national emergency, a state of emergency which has existed, uninterrupted, since 1933, or for over sixty three years. In effect the rights of the people guaranteed in the Constitution have been set aside by provisions within the Constitution to provide for dealing with emergencies under the Rule of Necessity.
As you may remember, the authority to do this is conferred by Subsection (b) of Section 5 of the Act of October 6, 1917, as amended, "An Act To define, regulate, and punish trading with the enemy, and for other purposes."
Acting under authority from Congress, President Franklin Delano Roosevelt reduced (1934) the standard gold dollar from 25.8 grains to 15.238, or from 100 cents to 59.1 cents. An Act of Congress (1933) had "declared to against public policy" every provision "contained in . . . any obligation which purports to give the obligee the right to require payment in gold . . . or in any amount of money measured thereby." The act repealed legislation making Liberty bonds payable in gold of the standard when issued. In the Gold Clause Cases (1935) the Supreme Court held (1) gold contracts between individuals void as against public interest; and (2) while the United States could not repudiate its gold contracts, plaintiff would suffer no damage from payment in paper because he would have to surrender gold under a call of Government which had already taken the American citizen's gold possessions. A National Debt of over $30 billion, and State debts aggregating over $7.5 billion, all promised in gold, thus became payable in dollars devalued to 59.1 cents each. c69
It is from this subterfuge that the value of the dollar has declined in value in the fluctuating world gold market to approximately 4.65 cents in actual buying power in terms of pre-1934 gold dollars. In 1963, again by act of Congress, the American dollar (Federal Reserve Note) was taken completely off the gold and silver standards and the Federal Reserve Bank, a foreign owned banking entity, now has total control of the value of the dollar, and consequently the real buying power of the American public. There is now no coin of the United States that has intrinsic value, not excepting the penny, the gold and silver and copper having been removed from them.
In actuality, our Congress, though the agency of the 1934 act and subsequent yearly National Emergency Banking amendments to that Act increasing the limit of the National debt, borrowing more from the Federal Reserve Bank, has mortgaged the entire resources and assets of the United States and its citizens to the Federal Reserve Bank and its wholly owned HIDDEN subsidiary, the Depository Trust Company, with assets of $9.7 trillion, in the form of Commercial Liens against the total assets of the United States and its citizens. The Federal Reserve Bank, in its ability to control interest rates, precludes the possibility of re-paying the National Debt. The United States has remained in an insolvent state of National fiscal emergency as a result since 1933, with the National Debt rising to $5.7 trillion and more, a debt of in excess of $21,600 per each of the present 263,000,000 citizens. (1996)
The debt per each of the 125,000,000 citizens in 1933 was approximately $312 in terms of a "gold"dollar, or in terms of today's Federal Reserve Note dollar $6100. Admittedly, the assets of the United States and its citizens has increased remarkably, where the borrowing power is in excess of $5.7 trillion on assets of $9.7 trillion.
To put this in perspective, in terms of family income, with a single wage earner per family in 1934, the debt per four person family amounted to approximately equal to one fourth of a year's family income. Today, using the same criteria, except one and one half wage earners per family, the debt is approximately 4 years family income, an increase in public debt of 16 times.
From this we can see the evil inherent in the misuses and abuses of paper money as we have known them, and the dangers which the use of paper money brings to "We the People" in the abrogation of Rights guaranteed under the Constitution of the United States. The same applies to the misuse and abuse of "plastic money" in the form of credit cards. We can also see the evil inherent in our Legislatures not rigorously adhering to the intent and word of the Constitution as defined by our Founders for sound money practices. For a full discussion of this issue see Senate Report 93-549 War and Emergency Powers and links.
and fix the Standard of Weights and Measures; 49
49 The Articles of Confederation (Art. IX, sec.4) gave to its Congress "the sole and executive right and power of . . . . fixing the standard of weights and measures throughout the United States", so this provision in the new Constitution is substantially like that in the Articles. Uniformity here is almost if not quite as important as it is with respect to money. Because of systematic frauds practiced, Chapter 35 of Magna Charta (1215) defined liquid measures, measures of cloth, and weights.
Congress never has fixed a complete standard of weights and measures. It has adopted the wine gallon of 231 cubic inches as the standard of liquid measure. The English or Winchester bushel has always been in use. The standard size or capacity of the barrel for apples and other dry commodities has been prescribed by Congress, as well as the size of the basket for fruits and vegetables. Electrical Units have been defined. The gold dollar of 25.8 grains, nine-tenths fine, was standard until 1934.48 In 1866 Congress permitted, without requiring, the use of the metric system in the United States and declared that no contract or other writing would be held invalid when expressed in terms of that system. Later (1881) it authorized the Secretary of the Treasury to deliver to the governor of each State, for the use of the agricultural colleges, a complete set of all weights and measures adopted as standard. The Postmaster General has authority to supply to the post offices postal balances denominated in grams of the metric system. In 1901 Congress established the Bureau of Standards. It has custody of the standards, and its duties are to compare standards in use and to construct and test standards, as well as make a general study of the subject.
Since the end of World War II, the established policy world wide has been to fully incorporate the Metric System as the standard. There is no longer any question of legislation to convert the entire country to the Modernized International (SI) Metric System on a mandatory basis. The Senate approved a bill in 1972 and in March of 1973 the Congress heard bills for the same purpose, becoming law in the 93rd Congress. The United States Bureau of Standards now works closely with the International Standards Organization (ISO). Of the 10000 standards that were required to be written over half have been approved. Great strides have been made, the United States being the last industrial nation to implement the metric system due to the tremendous amount of capital equipment involved, and the resistance of the citizen to readily accept the Metric Standards. We in this country are learning an entire new language of measurement, quit different from the duodecimal system we have grown up with. It is slowly being integrated as older machinery is phased out and the students of the upcoming generations are educated with the Metric System as the primary standard. However, even the countries who are currently metric also have a learning problem in accepting the modernized (SI) standard as they change from the old CGS and Metric Technical European System, and the revision can sometimes be more difficult that "starting from scratch."
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States; 50
50 Had this power not been expressly conferred upon Congress it would have been implied from the preceding power "to coin money and regulate the value thereof," if not from the inherent power of any government to protect its sovereignty and itself. The power was not conferred by the Articles of Confederation. It has been held that "the securities" which may not be counterfeited include treasury notes of the United States, its certificates of indebtedness (like silver certificates, which now have been abolished), its bonds, its war savings stamps and the bills or paper money issued by the National banks through the Federal Reserve Bank. Currency is no longer issued by the United States Treasury, being printed by the Treasury printing office, and then given to the Federal Reserve Banks for issuance.
To establish Post Offices and post Roads; 51
51 In its relation to the intellectual, social, and material advancement of the people this provision goes alongside of the commerce clause for importance. The Post Office Department deals more directly with the individual that any other activity of the government.
In the Articles of Confederation provision was made (Art. IX, sec.4) for "establishing and regulating post offices from one State to another throughout all the United States, and exacting such postage on the papers passing through the same as may be requisite to defray the expenses of the said office."
Postal service was given in the Colonies as far back as 1639. An act of Parliament of 1710 authorized a deputy postmaster general for America at New York. Benjamin Franklin took the office in 1753 and made a success of it. When the government under the Constitution began in 1789 there were about seventy-five post offices in the thirteen States. In 1846 a postal treaty was negotiated with England. Postage stamps were introduced in 1846, stamped envelopes in 1852, the registered letter in 1855, free delivery and the traveling post office in 1863, the money order in 1864, postal cards in 1872, rural delivery in 1896, postal savings depositories in 1910, and the parcel post in 1912 -- in all these matters Congress exercising power under this clause.
The government is not required to furnish postal facilities for every purpose, the Supreme Court has held, and therefore an act (1868) forbidding the mailing of matter relating to lotteries was sustained (1877) under this clause. So also of the Act of 1873 excluding obscene and like matter. The Supreme court held further (1892) that the Amendment (1890) to the law excluding from the mails newspapers and periodicals containing advertisements of lotteries did not abridge the freedom of the press.142 The circulation of newspapers as such was not prohibited. The newspapers could enter the mails by omitting the advertisements. The court sad that Congress could not be "compelled arbitrarily to assist in the dissemination of matters condemned by its judgment." Of course, the Post Office Department cannot open mail to find whether it is objectionable except in conformity with the clause 146 regarding search.c65
On March 20, 1908, President Theodore Roosevelt wrote the Attorney-General in denunciation of anarchistic publications, declaring them to be the enemies of mankind and asking for an act of Congress excluding them from the mails:
"The Immigration Law now prohibits the entry into the United States of any person who entertains or advocates the views express in this newspaper. It is, of course, inexcusable to permit those already here to promulgate such views . . . . No law should require the Postmaster General to become an accessory to murder by circulating literature of this kind."
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; 52
52 These subjects were not mentioned in the Articles of Confederation. Nor were they in the first draft of this Constitution. Copyrights had been granted by some of the States, and this probably suggested to Mr. Madison and Mr. Pinckney the motions which resulted in this clause. In 1782 Noah Webster began an effort with the States to secure copyrights of two elementary works on English. The legislature of Connecticut granted his request in 1784 by passing probably the first copyright law in the United States. New York and Massachusetts followed. In 1783 Congress had recommended such action by the States. Thus the ground had been well prepared before the Constitutional Convention assembled (1787) and the proposal was quickly accepted. A copyright law, entitled "An Act for the Improvement of Learning," was passed (1790) by the first Congress under the Constitution and many revisions have since been made. The present copyright law gives to the originator the exclusive right to make, publish, or sell books, maps, charts, pictures, prints, statues, models, and some other things for a term of twenty-eight years, with the privilege of renewal to him or to certain of his dependents for another term of twenty-eight years. The copyright extends to the publication and sale of popular songs and the use of them upon the stage and in the phonograph; and it covers also moving picture films and TV broadcasts. Thus the short statement of a principle in the Constitution is given in the course of time the widest practical application -- to things which the mind in 1789 could not have conceived. One infringing the right is subject to penalty and is also liable for damages done to the Holder of the copyright.
By the common law of England (of which portions were adopted in America) and precedent in American jurisprudence establishing American common law, an author was protected from the publication of his manuscript by another. But after he himself had published he lost his property and any one else might publish. However, by copyright he is protected from publication by others for the full statutory term.
The benefit of our copyright laws was at first given to citizens only, but now it extends to citizens of countries which make reciprocal arrangements for the protection in those countries of American authors.
The law of copyrights in the United States was largely formulated by decisions of Judge Story (later a Justice of the Supreme court of the United States), sitting in the United States Circuit court at Boston, between 1830 and 1845.
A patent law, "An Act to Promote the Progress of Useful Arts," also was passed by the first Congress. The patent law as we know it really dates from 1836, when the Acts of Congress were fully revised. From 1835 to 1845 Judge Story laid in numerous decisions the foundations of patent law as Lord Mansfield created the commercial law of England. Not until 1845 did patent cases appear commonly in the Supreme Court of the United States. An early and famous one, decided by Chief Justice Taney (1842), had to do with the landslide of a common plow. In 1853 Samuel F. B. Morse was held by the Supreme court, in a case arising in Kentucky, to have been the first inventor of the magnetic telegraph capable of recording signals at a distance. He applied for a patent on September 28, 1837. Davy secured a patent in England in 1838 and Wheatstone secured one in 1840.c81
The tide of emigration into western territory brought up patent cases respecting reaping machines, grain elevators, plows, and other inventions springing from agricultural life. In 1853 the great case of Seymour vs. McCormick, involving the infringement of the rights of Cyrus H. McCormick, the inventor of the reaping machine, patented in 1834, was passed upon. In the trial Court at Cincinnati, Abraham Lincoln was associated with Edwin M. Stanton, later to be selected by Lincoln as Secretary of War. c81
To this provision of the Constitution is due, undoubtedly, the supremacy of the United States in all fields of electricity and mechanical invention. In no other country has the use of machinery gone as far or done so much for human comfort and advancement. In every quarter of the earth some American machine has lessened toil or given pleasure. The monopoly offered to the inventing genius stimulated him to seek the great rewards given for a useful device.
While the purpose of the Constitutional provision and the Acts of Congress passed from time to time to give it effect is that the genius of the inventor shall be recompensed by a monopoly of the manufacture and sale of his invention, the Supreme court has held (1918) that "the exclusive right to make, use and vend the invention or discovery ceases to when the right to vend has been once exercised." Having once sold the article, he can no longer control the price. Therefore, a notice placed by the patentee upon his invention that it was "licensed by us for sale and use at a price of not less than $1," and that any violation of the condition would be an infringement of his patent right, was held beyond the protection and purpose of the patent laws; and accordingly a merchant who purchased the article in trade could resell it at less than a dollar.c82
In the Trade Mark Cases (1879) it was held that the grant of power to Congress by this clause of the Constitution did not authorize it to give exclusive rights in the use of registered trade-marks. A trade-mark is not an invention, nor is it the work of an author. However, the courts exercise their equity powers to prevent by injunction the unfair use of a mark or name (or something deceptionally resembling it) under which another has built up a trade or patronage; and at the same time the public is protected from the imposition upon it of and article different from the one which it thinks it is buying. During the fierce competition of recent years and the litigation growing out of it there has been built up in the form of decisions of the courts a vast body of what is called the law of unfair trade.c27, c111
To constitute Tribunals inferior to the supreme Court; 53
This provision is repeated in Article III97, dealing with the Judicial Department of the Government. Section 1 of that Article vests the judicial power in a supreme Court, "and in such inferior courts as the Congress may from time to time ordain and establish."
There are in the United States including Puerto Rico 83 district or trial courts. In many places a district is divided. There are 144 divisions, so it may be said that in reality the number of courts is above one hundred. Appeals lie from those courts in some cases directly to the Supreme Court of the United States, but in a large number of instances appeal is taken to the Circuit Court of Appeals, a tribunal of three judges created in 1891 for the relief of the Supreme Court, the decision of which is final in many cases. The United States and its possessions are divided into nine circuits, and one of the justices of the Supreme Court is, under an act of Congress, allotted by the chief Justice to each circuit, where he sits as presiding judge whenever he attends (which is not often) a session of the court. There is a Court of Claims at Washington, established in 1855, in which the government consents to be sued. In 1909 Congress established a court of Customs Appeals with jurisdiction over import duties. In China and some other countries we have consular courts.
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; 54
54 It is fitting that matters touching the law of nations should be under the power of the Nation rather under those of the States. Otherwise, a State dealing with a foreign nation might embroil all the States. The Articles of Confederation (Art. IX) gave to "the United States in congress assembled" the "sole and exclusive right and power of . . . . appointing courts for the trial of piracies and felonies committed on the high seas." But "to define and punish" was not contained in the Articles. The high seas are the public seas over which all vessels have the right to travel, like a highroad or highway. They include the unenclosed waters of the ocean and those on the coast outside of the low water mark. Piracies (robberies) and felonies (offenses punished by imprisonment or death) as they were known in 1787 have disappeared from the sea. Piracy was a profitable business then, as it had been from time immemorial. Captain Kidd and many others became noted for it. By the Treaty of Ryswick (1687) England, France, Spain, and Holland bound themselves to make common cause against piracy. Algiers covered the sea with pirates and in Washington's administration the safety of American commerce was purchased by the payment of tribute to pirates. At the close of the War of 1812 the United States sent Commodore Decatur with a fleet of nine ships to punish the Barbary pirates. He captured their chief vessels, entered the Bay of Algiers, and dictated a treaty to the humbled Dey. He then sailed to Tunis and Tripoli, where he took pledges of good conduct. Since then this clause of our Constitution has been practically obsolete as to offenses against international law.
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;55
55 The Articles of Confederation conferred upon Congress the "sole and exclusive right and power of determining on peace and war." But the United States could not engage in war "unless nine States assent to the same." More definite and full language is used in the Constitution . All those powers are attributes of nationality and would exist without mention in the Constitution. But it was desirable to make definite the department of government in which they should reside. In the Constitutional Convention some thought the President should have the powers; others favored bestowing them on the Senate as representing the States; but the prevailing opinion was that the grave acts of declaring and conducting war should be performed by the whole Congress. In 1812 Congress passed an act declaring war on Great Britain because of hostile acts done by that country. In 1846 a resolution of Congress declared that a state of war already existed with Mexico owing to hostile acts of that nation. In 1898 Congress declared war upon Spain. In 1917 a resolution of war was passed by Congress as a result of the sinking by Germany of the Lusitania and other merchant ships with the loss of American lives, and of other violations of international law with respect to the United States.
In 1941, Japan attacked at Pearl Harbor. Congress immediately declared that a state of war existed between the United States and Japan, Germany and Italy. The United States emerged as the only great nation in the modern world that never lost a war to that time. Since then the United States has been drawn into foreign wars, "UN Police Actions", as the major combatant, as an obligation to its involvement in the United Nations, in direct opposition to our previously successful position in international affairs as given by the Monroe Doctrine. The Korean War, which has accomplished an uneasy peace between the Communist regime in North Korea and the Democratic Republic of South Korea since 1954; the Vietnam War, the Gulf War, and numerous other skirmishes, none of which have been successfully completed, with the exception of uneasy peace in all instances, all with detrimental political repercussions to the world's opinion of United States.
The important lesson to be learned here is that in the United States, we should return to our previous position of neutrality "to declare a conduct friendly and impartial toward the belligerent powers," in the words of President George Washington, extending our friendship to all of like disposition, very carefully restricting our actions, so that here in the United States no one man (or one coterie) can declare war. The grave action of the declaration of war must be done only by the two Houses of Congress assembled (535 Members), elected by the direct vote of the people. This action must never be hurried, unjust or belligerent.
We must remember the words of the Supreme Court of the United States (1849), "The genius and character of our institutions are peaceful and the power to declare war was not conferred upon Congress for purposes of aggression or aggrandizement, but to enable the general government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens.", and never for any other reason.
In the case which prompted this position of the Supreme Court the question was whether the city of Tampico, Mexico, while in the military possession of the United States in 1847, ceased to be a foreign country so that customs duties could not be laid on imports from it. The answer was No. While the United States may acquire territory, it can do so only though the treaty-making or the legislative power -- the victories of the President as Commander in Chief "do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power."
Half a century later a somewhat similar question arose after the war with Spain. Puerto Rico and the Philippines were ceded by that Government to the United States. Did the acquisition change the status of the islands so that they ceased to be "foreign countries" within the meaning of the tariff laws under which duties had been paid by their citizens on their exports to this country? Next, how were they affected by the clause of the Constitution 63 requiring that "all duties, imposts, and excises shall be uniform throughout the United States"? In a series of decisions in what were called the Insular Cases, extending from 1901 to 1905, the doctrine was established that it is for Congress first to determine when acquired territory is in a condition to become in legal completeness a part of the United States. Territory comes into the United States through the door of congressional legislation and preparation. Until brought in by Congress new territory, while it has ceased to be a foreign country, does not become a part of the United States to the extent that its people have all the constitutional guarantees of civil and political rights.c109
Letters of marque and reprisal, authorized by the Articles of Confederation and by this clause, are authority issued by a government to its citizens to fit out ships (privateers) to capture the ships or property of another nation with which it is at war. Once every armed vessel was required to carry a letter of marque as evidence that it was not a pirate.
In a later section70 the State is forbidden to issue letters of marque and reprisal. By the Declaration of Paris (1856), to which the United States declined to assent because private property was not to be exempt from capture at sea, privateering was abolished by a convention of European powers.
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term that two Years; 56
56 To raise and support armies is a power implied from the grant of the one "to declare war." But to leave no question as to what department of the government would do it, the power was expressly conferred upon Congress; for otherwise the President as Commander in Chief85 might assume to raise armies after Congress had made the declaration of war. The President cannot raise an army, nor can Congress maintain one by appropriation for a longer term than two years. England, which suffered much from Kings and Parliaments that raised armies, resorted from 1689 (the year of the Bill of Rights) to 1879 to the device of the Mutiny Act. That Act, passed each year, began by reciting that the Bill of Rights made illegal a standing army except by consent of Parliament, and then it expressed the opinion that certain forces would be necessary for the coming year and accordingly made an appropriation of money. In addition it made regulations separate from the civil law for the discipline of the forces and for the prevention and punishment of mutiny. In 1879 a revision of the Mutiny Act was called the Army Discipline and Regulation Act, which also was passed each year. It is now called the Army (Annual) Act.
By raising ship money through a system of taxation of his own, instead of asking Parliament for an appropriation, Charles I was able to construct and man a powerful navy. But in the Civil War which followed his course he was defeated by the Parliamentary party and then beheaded.
"The legislature of the United States will be obliged by this provision, once at least every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; to declare their sense of the matter by a formal vote in the face of their constituents. They are not at liberty to vest in the Executive Department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence."
As the President cannot raise an army, and as Congress can maintain one for only two years (the length of a term of Congress), the possibility of collusion between them is very remote. Anything indicating collusion would be dealt with by the voters, who can retire every member of the House of Representatives and one third of the Senate every two years and put in those who would respect the popular will. In the Constitutional Convention there was much opposition to a standing army; but it was felt that that danger would be averted by placing the support of it in Congress, and then restricting the power of Congress to make appropriations.
The Articles of Confederation were weak as to raising and supporting armies. First, while "the United States in Congress assembled" had the "sole and exclusive right and power of determining on peace and war" (Art. IX), it was declared in the same article (Sec. 6) that the government "shall never engage in war . . . unless nine States assent to the same." Second, "all charges of war . . . shall be defrayed out of a common treasury" (Art. VIII) to "be supplied by the several States." There was an almost total lack of the concerted powers which are necessary to that swift and decisive action often required in National emergencies.
The Constitution corrected those faults. Thus in 1917 Congress by resolution announced that because of the acts of Germany a state of war existed with that nation; and then without any reference to the States, it passed in rapid succession acts laying on all the people (not of the States, but of the Nation) many kinds of emergency taxes, laws providing for the issuing of liberty bonds, for the conscription of men for the army and the navy, for the building of ships, for the making of munitions, and for all the other purposes of war. During World War I many of the States enacted laws in aid of the National endeavor.
The army of Europe which our fathers feared was developed through centuries of plunder by adventurous or predatory rulers, one of the inducements to hireling service in the rank and file being a share of the pillage. But the armies which have been raised in the United States have been of entirely different origin and training. They have come from homes, from generations of home-keeping and right respecting people, and they have been anxious to return home. Within a few months after the Grand Review of the Union armies in Washington after the Civil War, over a million veterans, fully equipped, had dissolved, as it were, and disappeared in the civilian life whence they came. And after World War I 4,800,000 men, of whom 2,084,000 had gone to France and 1,300,000 had seen active service, hurried gladly to their homes and left off even the military titles which they had won. However, it is well to have written in the Constitution the limitations regarding an army.
To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 57
57 A militia was provided for in Articles of Confederation (Art. VI, sec.4), each State being required to keep up a body of disciplined men "sufficiently armed and accoutered." The State was forbidden to keep "any body of Forces" in time of peace, unless Congress should deem it necessary as a garrison.
Under our Constitution each State maintains a militia, some of the States having bodies of the highest class in discipline and equipment. By act of Congress the methods of training are uniform, so that when bodies from different States are brought together they work as one.
The Nation may call out the militia of the State for three purposes only; (1) to execute the laws of the Union (the Constitution, the Acts of Congress, and the treaties); (2) to suppress insurrections (the open and active opposition of a number of persons to the execution of law); and (3) to repel invasions, that is, the entrance of an enemy for war. Congress has authorized the President to make those calls.
It is noticeable that the militia is not in the power of the President, and that the authority of Congress over it is limited to three purposes. Here, again, both the President and the Congress are prevented from achieving an armed dictatorship.
To provide for organizing, arming, 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; 58
58 Under this clause Congress has from the beginning provided for the training and maintenance of the militia. The National Defense Act of 1916 revised and extended preceding legislation. There are a National Guard, a Naval and an Unorganized Militia. For the purpose of maintaining appropriate organizations and to assist in instruction and training the President is authorized to assign the National Guard of the State to divisions, brigades, and other tactical units and to detail officers from either the National Guard or the regular Army to command such units.
The watchfulness of the people over State authority and their fear of the encroachment of National power are exhibited again in the provision that the militia must be officered by appointees of the State. Of such a military body the State would have no fear. Besides, officials of the State would be better informed as to who would be competent as officers. It was once a threatening question whether militia in the service of the United States could be commanded by any but militia officers and the President; but any officer under the commander in chief (the President) outranking the militia officer may command.
The Articles of Confederation provided (Art. IX, sec.4) that the Nation should appoint "all officers of the land forces in the service of the United States, excepting regimental officers." The clause in our Constitution was probably intended to restate that idea.
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, 59 and to exercise like Authority over all Places purchase 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;
59 This refers to the coming District of Columbia, where a city was to rise and be called Washington. In 1788-1789 Maryland ceded to the nation sixty square miles east of the Potomac and Virginia thirty square miles west. The cession by Virginia was returned in 1846. The District is governed directly by Congress.
In 1793 Washington laid the corner stone of the Capitol. The building of the White House had been begun the year before. In 1800 President Adams transferred the seat of government from Philadelphia to Washington.
This clause may have had its origin in an unhappy experience of Congress, which indignantly left Philadelphia and sat at Princeton because Pennsylvania had been unable or unwilling to protect it near the close of the Revolution from mistreatment by a body of mutineers of the Continental Army. It was determined that the National Government should be upon its own premises and within its own control. Further, it was felt that the capital should not be also the capital of a State or a large commercial city.
The choice of a site for the National capital resulted from a compromise effected by Secretary of State Jefferson and Secretary of the Treasury Hamilton. Congress was at deadlock respecting a bill for the assumption of State debts, States like Virginia, which had kept their debts well up, opposing the assumption of the debts of those badly delinquent. Nor could Congress come to an understanding as to where the capital of the United States should be. Jefferson undertook to influence votes enough to pass the Assumption Bill if Hamilton would procure enough votes to establish the capital somewhere on the Potomac River. The stipulation was carried out.
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. 60
60 This clause has been aptly described as "the most solid and excellent work done by the [Constitutional] Convention." It made the Constitution adaptable to unforeseen conditions and serviceable for all time. For example, it enabled Congress to pass many laws under the commerce clause for the control of the steamboat when it came, of the railway, of the telegraph, of the telephone, of the airplane, all undreamed of when the clause was written. After granting to Congress in twenty particular instances the people say in this clause that Congress may pass all additional laws that time and circumstances may make necessary or proper to give full execution and efficiency to each or all of the twenty grants of power. Experience under the Articles of Confederation had made this clause so plainly desirable that hardly any contention was raised by it in the Constitutional Convention. It neither grants a new power nor enlarges any of the others. Under the ordinary rules of interpretation what is stated in this clause would be implied had the language been omitted. But it was deemed necessary to express it clearly -- to put beyond question that such restrictions as that of the Articles of Confederation (Art. II), that each State should retain the powers "not by this Confederation expressly delegated to the United States in Congress assembled," should not embarrass the new Nation. It has been said that the grant of power to do what may be necessary is express and not implied. However, it is the custom to speak of a power necessarily flowing from the previous grant of another power as an implied power.
The question of implied powers, in a large aspect, first arose in Jefferson's administration (1803) over the purchase of Louisiana from France. Jefferson was a "strict constructionist" -- nothing was constitutional in his view if it was not clearly written in the fundamental law. But the Constitution does not expressly authorize the purchase of territory. He was, therefore, between a theory of constitutional law and a great necessity of governmental administration. In a message to Congress he referred to the control of the Mississippi by France and mentioned the recent "suspension of our right to deposit at the port of New Orleans." He at first felt an amendment to the Constitution necessary to the exercise of such power, but "if our friends think differently," he added, "certainly I shall acquiesce with satisfaction." But the Senate confirmed the treaty 88 of purchase and the House of Representatives originated the money bill 37 necessary to carry it out without so much as even proposing an amendment. The very first clause granting power to Congress authorizes it to "provide for the common defence and general welfare of the United States." That is precisely what was held in mind by Jefferson and Congress when the purchase of Louisiana was made, and the control of the Mississippi River acquired. The Constitution therefore gave the power to purchase.
Commenting on this purchase by Jefferson (Anti-Federalist or Republican) when there was no express clause in the Constitution to warrant it, John Quincy Adams, whose father John Adams (Federalist) had been a spirited opponent of the great strict-constructionist, said: "It naturalizes foreign nations in a mass. It makes French and Spanish laws a part of the laws of the Union . . . And all this done by an administration which came in blowing a trumpet against implied powers!"
One other great illustration, out of many cases, will suffice. In 1791 the Bank of the United States was created by Congress in support of Hamilton's financial policy for making stable the currency and establishing the National credit. No power to charter banks or corporations is expressed in the Constitution. In 1818 Maryland passed a law taxing the paper used in issuing money by all banks not chartered by its legislature. This affected the operations of a branch in Maryland of the Bank of the United States and brought a direct conflict of authority between the State and the Nation. The Supreme Court of the United States, in an opinion written by Chief Justice Marshall, held (1) that in pursuance of its fiscal or financial policy Congress had power to establish a national bank, and (2) that the State could not hamper or burden the proper activities of the Nation. c7
As to every one of the twenty grants of power Congress has from time to time enacted laws which it deemed necessary to make the law effectual. Indeed, as before indicated, this is what has fitted the constitution to new or unforeseen conditions as they arose, and kept it the controlling force in the development of thirteen scattered agricultural communities into a Nation of fifty great States of immeasurable material wealth, of unexampled political freedom, and of the highest educational and social advantages.
Section 9. 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." 61
61 As the preceding sections deals with the affirmative powers of Congress, this section has to do with what has been called its negative powers. It enumerates ten things which Congress may not do.
In Section 9 a legislative body was for the first time restrained. Kings had been curbed by charters, but never a legislature. Parliament was often tyrannical. American statesmen feared the legislature. "An elective despotism was not the government we fought for," wrote Jefferson. Madison argued that "the people ought to indulge all their jealousy and exhaust all their precautions" in self-defense. So the first American invention in government was a curb upon legislative power, as was the second. 97
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. 62
62 By the ancient writ of habeas corpus (have the body) an English court commanded the jailor or other officer having a prisoner in charge to bring him before the bar for inquiry as to the legality of his restraint from liberty. Men had been cast into prison without formal charge and left there without hearing or trial. In the Petition of Right to which Charles I was obliged to assent (1628) the sovereign was charged with violation of this privilege, which antedated the Magna Charta (1213). It was prayed in the Petition that "freemen be imprisoned or disseized only by the law of the land, or by due process of law, and not by the King's special command without any charge." In the reign of Charles II (1679) the first Habeas Corpus Act was passed to make more definite the rights of Englishmen which had been disregarded on one pretext or another. In the reign of George III the first act, relating to charges of crime, was supplemented by an act dealing with deprivation of liberty for any other reason.
Knowing in how many ways this right of the Englishman and the English colonist in America had been defeated, the framers of our Constitution forbade suspension of the privilege except in two similar contingencies; but even in time of (1) rebellion or (2) invasion the privilege is not to be suspended unless the public safety may require it.
As this clause is in Article I of the Constitution, relating to legislative powers, and as the subject is not mentioned in Article II, dealing with the powers of the Executive (President), it was held by Chief Justice Taney shortly after the outbreak of the Civil War that President Lincoln did not have power to suspend the privilege of the writ, Congress alone possessing that authority. The President had suspended the privilege in several instances where former officers of the army or the government had gone over to the Confederacy and were active in the North against the Union. Such persons were put in prison and held without trial.
In England a habeas corpus Suspension Act often is passed which partially annuls the operation of the celebrated Habeas Corpus Act of Charles II (1679). The Suspension Act makes it hopeless for any person imprisoned under a warrant signed by the Secretary of State on a charge of high treason or on suspicion of treason to insist upon being either discharged or put on trial. The Government of England may defer indefinitely the formal accusation and public trial of persons imprisoned on suspicion of treasonable practices. That cannot be done in the United States.
No bill of Attainder 63
63 The bill of attainder in England was an act of Parliament by which a man was tried, convicted and disposed of without a jury, without a hearing in court, generally without hearing the witnesses against him, and without regard to the rules of evidence. His blood was attainted or corrupted legally so that he could not inherit property from others nor could his children inherit property from him. This deprivation of property was contrary to the charter of Edward III (1327-1377), which said that no one should be "put out of his lands or possessions, . . . or disinherited, . . . without being brought to answer by due process of law." Bills of attainder were first passed by Parliament in 1459 and were often employed during the time of the Tudors (1485-1603). In the reign of Henry VIII (1509-1547) they were much employed to punish those who had incurred the King's displeasure and many fell victims who could not have been charged with any offence under existing law. During the Long Parliament (nearly twenty years) beginning in the reign of Charles I (1625-1649) Parliament itself made effective use of the bill of attainder to dispose of objectionable persons. In the reign of William III and Mary (1690) an act was passed "for the attainder of divers rebels;" and Macaulay says that "it was not even pretended that there had been any inquiry into the guilt of those who were thus proscribed." In 1870 forfeiture was abolished by the English Government except upon outlawry, and it was provided that "no judgment of or for any treason or felony shall cause any corruption of blood or any forfeiture or escheat." For his activities and writings in behalf of colonial rights Jefferson's name was included in a bill of attainder presented in Parliament, but it was not pressed to a vote.
The convenience of the bill of attainder when ruthless power found in its way legal safeguards to the man was well illustrated in the case of Thomas Wentworth, Earl of Strafford and chief advisor to Charles I, who was impeached (1640) and tried before the House of Lords on the charge of attempting to subvert the liberties of England. As the evidence seemed insufficient, and as Strafford defended himself with great ability, his prosecutors, foreseeing an acquittal, withdrew the impeachment and subsequently attacked him by a bill of attainder which passed both Houses and received, under the pressure of public opinion, the unwilling signature of the King, Strafford was beheaded.
Bills of attainder were known in America in colonial times. In 1777 Thomas Jefferson wrote a bill of attainder for an outlaw in Virginia. This method of punishment was often used during the Revolution. In Lecky's "England in the Eighteenth Century" it is mentioned that in the State of New York and act confiscated all the goods of fifty-nine royalists, including three women, and in a footnote the author makes reference to "a long list of these acts of attainder."
Having beheld the injustice of such punishment, the framers of our Constitution put in the instrument two prohibitions of bills of attainder, this one to curb the National Government, and one in the section following 71 preventing such legislation by the government of a State.c12, c13
or ex post facto Law shall be passed. 64
64 An act is ex post facto (after the deed or fact) when it (1) makes a criminal offence of what was innocent when done, or when it (2)aggravates a crime, making it greater that it was when committed, or when it (3) inflicts a greater punishment than was prescribed at the time the crime was perpetrated, or when it (4) alters the rules of evidence in order to secure a conviction, or when it in effective not in purpose (5) deprives the accused of some protection to which he had become entitled. Thus a law changing the number in a jury from twelve to eight after a crime had been committed was held ex post facto as to the accused, who could not be deprived of his liberty unless by a jury of twelve of his peers. And an act passed after a man had been convicted and sentenced to death, requiring that persons under such sentence be kept in solitary confinement, was held ex post facto as to him because imposing additional punishment. But acts changing punishment from hanging to electrocution have been held by several courts not to be ex post facto, for, as one of the courts said, the act, so far as it could tell, might have mitigated rather than increased the punishment. c92, c101
Nor was the law of the State ex post facto which gave the State an appeal in criminal cases which did not exist at the time the crime was committed, the appeal of the State resulting in a conviction of the defendant, the Supreme Court of the United States holding that the legislation of the State did not make criminal what was innocent, or aggravate and offence, or alter the rules of evidence, or otherwise deprive the accused of a substantial right. c44
Near the close of the Civil War an act was passed by Congress that no attorney should be permitted to practice in the Supreme court of the United States or any other Federal Court, or be heard by virtue of any previous admission, until he had first taken an oath the he had not voluntarily given aid, counsel, or encouragement to persons engaged in armed hostility to the United States and that he had not sought or accepted office in hostility to the National Government. A man who had served in both the House and the Senate of the Confederate States of America received a pardon from the President in 1865. He applied for readmission to practice in the Supreme Court without being required to take the oath mentioned, which of course he could not take. He contended that the act was unconstitutional because ex post facto, and he also claimed the right under his pardon. The Supreme court held that as the oath could not be taken, the act operated "as a legislative decree of perpetual exclusion," a method of punishment which did not exist at the time the acts of the applicant were done.
No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken. 65
65 A capitation (caput, meaning head) or poll (head) tax is one levied upon the individual without regard to his possession in lands or personal property. The poll or capitation tax was common in early New England. While condemning the capitation tax in "The Federalist", and expressing the belief that taxes should be raised indirectly, Hamilton was nevertheless in favor of head taxes in case of emergency; for he mentioned that the sources of revenue then were few. This clause forbids Congress to lay a tax upon individuals except uniformly, and in proportion to the census provided for 10 in Article I, Section 2, Clause 3, where this subject is first mentioned.
No Tax or Duty shall be laid on Articles exported from any State. 66
66 This is the only prohibition in the Constitution upon the taxing power of Congress. A like prohibition as to taxing either imports or exports is declared 73 against the State legislature in Section 10, Clause 2, below.
This provision was demanded by the Carolinas and Georgia. They waived their objections to taxes on imports in consideration of this clause. Some of the agricultural States were in fear of the taxing power.
A tax of one cent a pound on all filled cheese manufactured was held by the Supreme court not violative of this clause as to the owners of cheese which was exported, for the tax cast no more burden on exported articles than was borne by those not exported. So during the Civil War a tax was imposed on all cotton and tobacco. It was contended by men producing and owning that as the larger part of those products was exported the tax was unconstitutional; but of course the tax was not laid because of the exportation -- the commodities were called upon to pay the tax regardless of their entering foreign commerce. However, and act of Congress (1898) to meet the expenditures of the War with Spain was held (1901) unconstitutional under this clause as to a stamp tax imposed on a bill of lading covering shipments of grain for export, that being a tax imposed on the exporter only and for the reason that he exported, a tax plainly prohibited by this clause. c20, c43
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. 67
67 This proposal was placed before the Constitutional Convention by the delegates from Maryland, their fear being that congressional legislation might prefer Chesapeake Bay ports of Virginia to those of their State. Under the Articles of confederation, as has been seen, each State was free to impose duties and make regulations to the disadvantage of others, and it was desired that equality in commerce be maintained in the future.
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. 68
68 In this clause is repeated the lesson of English history that it should not be in the power of the Executive alone or of the legislature alone to raise or spend the money at will. In Section 7 preceding 37 is the requirement that all bills for raising money must originate in the House of Representatives; but they must then pass the Senate and be signed by the President. In 1842 Congress began to make appropriations by joint resolution; but as that also must be signed by the President, 39 there is no real difference.
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 whatsoever from any King, Prince, or foreign State. 69
69 "A wise jealousy of foreign influences in the affairs of government," says a writer on our Constitution, "will amply justify this provision."
A provision in almost the same words was in the first section of Article VI of the Articles of Confederation. It permitted persons holding office under a State to accept, with the assent of Congress, the objectionable gifts or distinctions; but the constitutions of at least two of the States at that time forbade them altogether. Of course, a republic born of the misrule of a monarchy should not grant titles of nobility. The institution called nobility had possessed itself of most of the posts of trust and honor to the hopeless exclusion of the rest of the people, and by prestige and by the favoritism of the government of which it was so large a part it had gained the greater share of the lands and other wealth of England and of the continental countries.
A gift from the King of France to our ambassador during the Revolution is said to have suggested this provision. "Any present . . . of any kind whatever" was said by the Attorney General's office in 1902 to prevent the acceptance of photographs from Prince Henry of Prussia, brother of the emperor of Germany, by civil and military officers of the United States. But while Jefferson was President he accepted (1806) from Alexander I of Russia a bust of that Emperor, which he said would be "one of the most valued ornaments of the retreat I am preparing for myself at my native home." He said that he had laid it down as a law of his official conduct not to accept anything but books, pamphlets, or other things of minor value; but his "particular esteem" for the Emperor "places his image in my mind above the scope of the law."
This prohibition of the granting of titles of nobility by the Nation is repeated 72 as to the States in the first clause of the next section.
In 1810 Congress proposed an amendment, the original Thirteenth amendment, to add a heavy penalty to this clause by this wording,
"If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honor, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding office of trust or profit under them, or either of them."
It was thought, at least in the 20th century, that the proposed amendment lacked the necessary ratifying votes. Subsequent research of recent date (1984 continuing to now, 2009) show that the proposed amendment was indeed properly ratified, the State Department WAS notified and was on the books and records of the various States until at least 1876. From 1810 to 1812, twelve states ratified this amendment. The War of 1812 destroyed the library of Congress and these documents were thought destroyed, but in 1994 it was discovered they still exist. After receipt of an inquiry from President James Monroe and Secretary of State John Quincy Adams in 1818, Virginia confirmed the ratification March 12, 1819 with the act authorizing the publishing of the VA Revised Code in 1819. The Revised Code contained the Constitution -- including the original Thirteenth Amendment as proposed to the states for ratification in 1810, which the Virginia House and Senate quite propery had done May 1, 1810
The Virginia legislature subsequently authorized the distribution of the Revised Code of 1819 -- with ten copies designated for the executive branch of Virginia, five copies for the Clerk of the general assembly, and four copies for the Secretary of State of the United States, received not later than 29 August 1821; one copy each for Thomas Jefferson, James Madison, and President James Monroe; one copy each for the federal Senate, House, and Library of Congress, and one copy for every judge in the courts of the United States in Virginia. Thus was the Federal government notified of the ratification by Virginia. By February of 1820, sufficient copies of the Revised Code had been printed to make it available for public sale, and it was advertised as such in a Richmond newspaper. Research conducted on this subject indicates that at least six or seven other Virginia newspapers also carried advertisements for the new Code.
Article V of the Constitution does not stipulate that the States, having ratified or rejected a constitutional amendment, be required to report their actions in any one particular way. Therefore, under the Tenth Amendment, each State is left free to publish the actions of its legislative bodies in any manner whatsoever. Federal law as of 1818, and as amended in 1820, requires that the Secretary of State give public notice of such ratifications as may be reported by the States. That law cannot and does not impair the rights of the States to issue their notices in any manner that their lawfully elected representatives deem proper. Indeed, the Revised Code of 1819 was, and is, the fulfillment of a contract made between those in government and those who have given their consent to be governed, in this case the free men of Virginia.
Evidence has been found that only 10 States may have been required to ratify in 1812, not 13, as two of the States, Connecticut and Rhode Island, did not become full States until 1818 and 1842 respectively, as they were still operating under their original charters and had not instituted a proper State constitution as required by the Constitution until these dates. However, the proposed Thirteenth Amendment was properly ratified with the publishing of the Virginia statutes in 1819. Research has proven that this amendment was unlawfully deleted from the Constitution of the United States of America in random years until 1876 without legislation from any state, or congressional action on the national level.
Avenues are being sought to reinstate this original and lawful Thirteenth Amendment as it was never repealed, but only deleted by outright fraud. Because of this fraud and others, the members of the judiciary and law professions now control all three branches of government. Jefferson warned of this. It is thought that one effect of this original Thirteenth Amendment would have precluded any member of the Bar Associations from citizenship and the ability of holding any office under the Constitution of the United States. If the original Thirteenth Amendment were reinstated, as members of the Bar Associations retain a title of honor, i.e. "Esquire", setting them apart from the common man, or as possessed of special privileges or immunities before the courts and in government not available to the common man, they would therefore be excluded from citizenship and eligibility to office in government. There is some doubt in this, however.
The main effect that restoration and implementation of the original Thirteenth Amendment would have in these times in the 21st Century would be the heavy penalty to the members of the judiciary, politicians, and the political "war chests" which are on the "take" of emoluments from the lobbyists of the foreign nations, foreign special interest groups, and foreign/multinational corporations.
"They saw all the consequences in the principle and they avoided the consequences by denying the principle." -- James Madison
Section 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit, 70
70 All the powers in this section denied to the States are in Section 8 granted to the Nation. As the exercise of such power by the States had helped to wreck the Government under the Articles of Confederation, the double precaution was taken by the people of granting them to the Nation in Section 8 of this Article of the Constitution and denying them to the States in Section 10. Those things are essentially National. In several places in the Constitution this double statement of power is employed. By this section the States yielded to the Nation some powers which they had previously exercised.
Under the Articles of Confederation the worst of all the troubles, probably, sprang from the lack of National control of money and credits, and it was frequently stated in the Constitutional Convention that those evils --- what Madison called "the pestilent effects of paper money." -- must be abated forever. Nevertheless, many attempts have been made by States to issue paper money, that is to "emit bills of credit" to be passed as money. Those acts of the States have, of course, been held unconstitutional, in some instances by the courts of the issuing States -- for the Constitution provides 134 that "the judges in every State shall be bound thereby [by the National Constitution], anything in the Constitution or laws of any State to the contrary notwithstanding." But bills of credit or certificates of indebtedness which are not intended by the State to circulate as money do not fall within the prohibition of this clause.
make any Thing but gold and silver Coin a Tender to Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts," 71
71 The command in the preceding section, that Congress shall not enact attainders or ex post facto laws, is here repeated as to the States, with the addition that the State shall not impair the obligation of contracts. This was added when it was pointed out that the term ex post facto relates only to criminal law. The provision was accordingly framed to fit civil cases. Therefore the State may not change the legal standing of a citizen with respect either to his personal conduct or to his contracts. A contract which was permissible and valid at the time that it was entered into cannot be rendered void or be in any wise impaired by subsequent legislation by the State, or by the county or the city acting under powers received from the State. The obligation of a contract is its binding force on the party making it which the law at the time it was made would effectuate. It involves the promise of the party and the sanction of the law that the promise shall be carried out. The contracts of the State as well as those of the individual are covered by this clause. Many cases have arisen in which States have attempted to evade the obligations of contracts made by them with citizens. To Illustrate, where a state chartered a bank an profited from its operations, and the law creating the bank provided that the bills or money issued by it should be receivable in payment of debts due to the State, such as taxes, a subsequent act of the legislature repealing this provision of the Bank Act was held (1850) by the Supreme Court of the United States to violate this clause of the Constitution. When the citizen accepted the inducement of the state to use its bank's money for its benefit a contract arose under which the State was obliged to render to him the advantage which it had promised and for which it had received a consideration.
One of the purposes of the provision was to prevent States from permitting the payment of debts in paper money. Another purpose was to prevent the passage of insolvency laws and stay laws which would release debtors from their present obligation to pay. In addition to those matters, contracts of States themselves had been repudiated. "The separate legislatures have so often abused the obligation of contracts," wrote Jefferson, "that the citizens themselves chose to trust it to the general [National] rather than to their own [State] authorities." On the same subject chief Justice Marshall said "a course of legislation had prevailed in the States which weakened confidence of man in man." c24
In 1758 the remnant of the Delaware Indians in New Jersey were given a tract of land in the State in consideration of their leaving lands which they were occupying; and it was agreed by the State that the lands to be given to the Indians aforesaid "shall not be subject to any tax, any law, usage or custom to the contrary notwithstanding." In 1801 the legislature of New Jersey attempted to revoke the tax exemption after the lands had been sold by the Indians, but the Supreme Court of the United States held (1812) that the act of revocation was void for conflict with this provision. The Court said that the privilege to be free from taxation was, by the terms which created it, annexed "to the land itself." The exemption therefore went with the land to the purchaser, who could not be deprived of it. c25
The Dartmouth College case is perhaps the most celebrated of the early cases arising under this clause. In 1769, after application to the King of England for a charter to incorporate a religious and literary institution, and upon the representation of the applicants that large contributions had been promised for the project, which would be conferred upon the corporation as soon as it was chartered, George III issued a charter. On the faith of that grant the property promised was conveyed to the corporation. Gifts of land and money were received and many rights acquired. In 1816 the legislature of New Hampshire passed "an Act to Amend the Charter and Enlarge and Improve the Corporation of Dartmouth College." The Act changed the name college to university, and the reorganization was such as to put the property and the franchise in the possession and control of another organization. The trustees of Dartmouth College refused to recognize the amended charter and brought a proceeding to see whether the acts of the legislature "are valid in law . . . or whether the same acts are repugnant to the Constitution of the United States, and so void." Daniel Webster, who had been educated at Dartmouth, was counsel for the college. The Supreme Court held (1819) that the legislation of New Hampshire impaired the obligation of the contract under which the college came into existence and was to continue on its course, and that it was therefore unconstitutional and void. c36
The withdrawal for a time of the remedy of a creditor by the enactment of a stay law is unconstitutional. So is any law which, under the pretense of changing the remedy, undertakes to compel a person to accept something different in the place of that for which he had contracted. Any law which gives preference in payment to one creditor to another which did not exist when the contracts were made is invalid, even though the preferred creditor is the Sate itself. This is true of any law which takes away from the creditor a substantial right which the contract assured to him, as the right to possession of mortgaged lands until the mortgage debt is paid. A law which increases the exemptions from executions issued on judgments so as to seriously impair the value of the remedy and reduce the possibilities of collection are void under this clause.
Contracts for the purchase price of slaves were enforced after Emancipation, notwithstanding the provision in the State constitution that such debts should not be paid; for the constitutional provision of the State was a "law" which impaired the obligation of a contract which was legally valid at the time it was made. c23
The contractual right of the owner of a house or an apartment to the possession of the premises upon the expiration of the term agreed upon in the tenant's lease was held (1921) by the Supreme Court of the United States not unconstitutionally impaired by a rent law of New York (1920) declaring the existence of a housing emergency and providing that in a city of a million population or more no action should be maintainable to recover possession of premises occupied as a dwelling by a tenant desiring to remain and pay a reasonable rent, except that the owner might have the dwelling for his personal possession or to tear it down for the construction of a new building. Contracts are made said the court, "subject to this exercise of the power of the State where otherwise justified", referring to the police power, which is exerted for the health, safety, and well-being of the people. c26, c96
Nor did the law operate to deprive the owner of property in violation of the Fourteenth Amendment,173 for in many cases restrictions upon property rights for the general welfare have been upheld as warranted under the police power of the State. It has long been established, the court pointed out, that the owner of property may be restricted in his income or rental, as by laws imposing an excess profits tax, or an income tax, or by laws prohibiting usurious interest.
In the leading case on the power of the State to regulate the rates which may be charged the public for the use of private property, the Supreme Court stated (1876) the governing principle as follows:
"Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw the grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control." c89
or grant any Title of Nobility. 72
72 In the preceding section 69 the Nation is forbidden to grant titles of nobility. The repetition of the commandment as to the State shows the dislike which the Fathers had for that institution which, more than anything else, had made life for the Colonies under English rule impossible. All the repressive and burdensome plans of the Government of George III found prompt and generally unanimous support in the House of Lords, the organized expression of intolerant and intractable nobility. The Constitutional Convention was determined that this noxious thing never should be found in the United States.
No State shall, without the Consent of Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and control of the Congress. 73
73 Here is another recurrence to the National prerogative under the commerce clause 45 to regulate trade. Every precaution was taken to keep the State from such interferences as those which had defeated the Union under the Articles of Confederation.
No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay. 74
74 In this sentence are four bars, none of which the State may cross without permission of Congress; it may not (1) lay any duty of tonnage (tax upon the cubical capacity of a ship), for that might work a hindrance to commerce and bring conflict with the regulatory power of the Nation under the commerce clause; it may not (2) keep troops or ships of war (the State militia, organized for discipline, and belonging to civil life, not being troops within this clause), for standing troops within a State might bring conflicts with other States or other governments, or even with the Nation; it may not (3) enter into agreements (political) with other States or with foreign powers, for thereby the National government might be embarrassed; and it may not (4) engage in war except in self defence. Each one of those powers is inherent in any independent government. For the good of the Union and themselves, the people of the States, in ratifying the Constitution, disclaimed those powers in favor of the Nation. c83
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