Article I of the US Constitution: Legislative
We now delve into the meat of the Constitution; beginning with Article 1 – Legislative Branch.
This article almost stopped the Constitution before it even got started. Our much-vaunted bicameral (two house) legislative branch grew out of HUGE disagreements, and was actually one of the last items finalized. The big-population states wanted representation by population – and the small states figured (rightly) that they would get lost in the shuffle. The small-population states wanted representation by state – and the large states thought that was unfair to their larger populations! After discussions degenerated to fistfights on the debate floor, the entire issue was tabled until near the end of the Constitutional Convention. We’ll see the end result shortly – and the final structure was both brilliant and inspired.
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.” (Bold Italics mine.) The very FIRST statement of the Constitution is that powers are GRANTED to the legislature. We, the People, retain sovereignty and grant the legislature PRIVILEGES (see first article of this series for a discussion of rights versus privileges; they are opposites) in order to carry out the tasks with which we have charged those two bodies.
The House of Representatives is the first house mentioned (in Section 2). This body represents the interests of WE the PEOPLE. It is the CLOSEST to the people and this is why Representatives are elected every two years – to KEEP them close to the opinions, interests, and needs of their constituents.
The Senate (discussed in Section 3) was, until passage of the 17th Amendment, the meeting house for the representatives or, more accurately, Ambassadors from the Sovereign States to the Federal government. They were chosen by the State legislatures, to ADVISE the Executive branch, to represent the interests of the states as sovereign entities, and to prevent the encroachment of federal power into areas intended for state jurisdiction (remember this Federal government structure is a dual-sovereignty structure; the states and the Federal government SHARE power and have SEPARATE duties). Senators are elected every SIX years; they were to take the “long” view on the effects of the governments’ work. Their term of office, spanning three terms in the House and more than one Presidential term, was designed to give them that longer-term outlook and underscores the importance of the STATE interests in the Federal discourse.
“The dreaded three-fifths clause” in Article 1, Section 2 is part of the clause requiring a census every ten years. “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, 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.” It was designed to limit the number of representatives AND thereby the political power of the Southern, slave-holding states, so that slavery could be ended after 1808 (Art. 1 Sec. 9 promises no action will be taken on slavery before that year). The southern, slave-holding states wanted ALL slaves to count for number of representatives, while the northern states wanted NO slaves to count. This compromise appeased the South without giving them so much power in the House that they could prevent future actions against slavery. It also established the legal precedent for slaves to be considered PERSONS – before this clause, there was no established basis in law to do so.
ALL legislation that needs money starts in House. Here is the true power!! The House could and SHOULD zero-fund any un-Constitutional act, law, or agency. There is NO requirement for Senatorial or Executive branch agreement; like it or lump it, the House is in charge of the money they must take, for government needs, from their constituents/neighbors.
Article 1 Section 10 lists the items the states are NOT allowed to do: make independent treaties with other nations, issue money that is not backed by gold or silver, impose tariffs on goods from other states, keep their own armies, stop contracts from being enforced, and grant titles of nobility.
Article 1 Section 8 lists the enumerated powers of Congress, which are the ONLY items Congress has ANY jurisdiction over.
Chief Justice John Marshall, writing in the Marbury v. Madison decision of 1803, said, “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written." This is an extremely important sentence – it states plainly that the powers of Congress are limited, and that Congress MUST stay within those powers. Interpretation of the Constitution by original intent is demanded by this statement by Justice Marshall, dated a short SIX years after the ratification of the Constitution. What are those “enumerated powers?”
Article 1, Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence [sic] and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
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;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
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;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;—And
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.
That’s it! NOTHING about education, oil drilling, health care, wind farms, food safety, farmers’ kids working on the family farm, fuel efficiency standards, or any of the other gazillion areas where the Federal government is now unConstitutionally meddling in and interfering with our lives.
You will note that the first clause of Art. 1 Sec. 8 uses the term “general Welfare” of the states. In Federalist #41, it is specifically stated that this first clause “employs general terms which are immediately followed by the enumeration of particular powers which explain and qualify, by a recital of particular, the general terms. It is error to focus on the general expressions and disregard the specification which ascertain and limit their import; thus, to argue that the general expression provides an unlimited power is an absurdity.” (Excerpted from the last four paragraphs of Fed #41.) What this means is that “general welfare” applies to items which are a general good to the population at large, and not to anything that benefits one particular person or sets of individual persons. You may not drive – but the trucks that bring groceries to your local store use the roads. So roads and highways are a “general welfare” as they benefit shoppers, travelers, shippers, truckers, commuters, farmers, and more.
Art. 1 Sec. 8 Clause 3 uses the term “regulate Commerce,” which has been misused to regulate just about everything under the sun. The Founders addressed this clause in several of the Federalist papers (see #22, #42, #44, and #56, specifically). In these various papers, they explain that there are two purposes to this clause. The first purpose is to prohibit a practice widespread under the Articles of Confederation: the imposition of tariffs on goods from other states – basically New York treating Virginia as though it were a foreign country, and making commerce extremely difficult and goods amongst the states far more expensive than they should have been. The second purpose was to permit the Federal government to impose duties on imports from and exports to other countries.
Article 1 Section 8 has several other items that warrant some explanation for modern eyes.
A “Letter of Marque & Reprisal” is a government license authorizing the crossing of international borders, attack or other action against enemy forces, and the taking of “prizes” by non-military personnel (this last refers to capture of sea-going vessels). The tactic was widely used by Britain and France (among others). Privateers held such letters, as did “Corsairs” (the term comes from the French term “lettre de course”). Today’s equivalent might be the company formerly called Blackwater Worldwide, a private military and security company.
The limitation on funding for the Army – funds must be renewed every two years – but there is no such limitation on funding for the navy. The Founders were still very chary of a standing army, and wanted any land forces to be under close supervision of Congress and the civil government, with the purse-strings ready to rein them in. A strong navy was considered crucial to national security – as well as safer for the populace, as the navy was out patrolling the coasts and seas, not wandering through towns, under full sail.
“Bill of Attainder” is another holdover from the days of rule by Britain. One of the techniques used to ruin persons the King (with the agreement and/or collusion of Parliament, in Colonial times) considered enemies, or dangerous, was to put them under a “writ (or bill) of attainder.” Under such a writ, you were considered convicted of a serious crime against the Crown, your civil rights were permanently nullified, and you could no longer own property or leave it to your family by will. Your property escheated to the Crown, and your family and heirs were left destitute. The US Constitution specifically prohibits this practice. Each state also specifically prohibits attainder.
No titles of nobility may be granted by either the Federal or State governments.
The last item to discuss in Article 1 is the “necessary & proper” clause (last clause of Section 8). This is yet another clause misused by Congress to assume powers that were not delegated to it. However, Federalist #29 (plus notations in #33 and #44) clearly explains that this clause was to delegate to Congress the power to pass laws necessary and proper to fulfill its declared powers. Madison, in Federalist #44, says, “The clause merely permits the execution of powers already delegated and enumerated in the federal Constitution. No additional substantive powers are granted by this clause” (emphasis added). Additionally, Federalist #45 states, “The powers... will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce... The powers reserved to the several States will extend to all the objects which... concern the lives, liberties, and properties of the people.”
This first Article of the Constitution carefully and clearly delineates the very few areas of federal jurisdiction, and reserves all else to the states and the people. It establishes representation for the people as well as the states as sovereign entities. It shows that the areas of federal control are mainly areas involving interactions with other countries, with a very few areas of inter-state jurisdiction. Next we will look at Article 2, the Executive Branch.
Primary References:
“Good To Be King” Michael Badnarik, 2004, The Writer’s Collective
“The 5,000 Year Leap” W. Cleon Skousen, 1981, National Center for Constitutional Studies
“The Federalist Papers” (available online)
PubliusHuldah.wordpress.com (attorney and Constitutional scholar)
copyright 2012 by the author
This article almost stopped the Constitution before it even got started. Our much-vaunted bicameral (two house) legislative branch grew out of HUGE disagreements, and was actually one of the last items finalized. The big-population states wanted representation by population – and the small states figured (rightly) that they would get lost in the shuffle. The small-population states wanted representation by state – and the large states thought that was unfair to their larger populations! After discussions degenerated to fistfights on the debate floor, the entire issue was tabled until near the end of the Constitutional Convention. We’ll see the end result shortly – and the final structure was both brilliant and inspired.
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.” (Bold Italics mine.) The very FIRST statement of the Constitution is that powers are GRANTED to the legislature. We, the People, retain sovereignty and grant the legislature PRIVILEGES (see first article of this series for a discussion of rights versus privileges; they are opposites) in order to carry out the tasks with which we have charged those two bodies.
The House of Representatives is the first house mentioned (in Section 2). This body represents the interests of WE the PEOPLE. It is the CLOSEST to the people and this is why Representatives are elected every two years – to KEEP them close to the opinions, interests, and needs of their constituents.
The Senate (discussed in Section 3) was, until passage of the 17th Amendment, the meeting house for the representatives or, more accurately, Ambassadors from the Sovereign States to the Federal government. They were chosen by the State legislatures, to ADVISE the Executive branch, to represent the interests of the states as sovereign entities, and to prevent the encroachment of federal power into areas intended for state jurisdiction (remember this Federal government structure is a dual-sovereignty structure; the states and the Federal government SHARE power and have SEPARATE duties). Senators are elected every SIX years; they were to take the “long” view on the effects of the governments’ work. Their term of office, spanning three terms in the House and more than one Presidential term, was designed to give them that longer-term outlook and underscores the importance of the STATE interests in the Federal discourse.
“The dreaded three-fifths clause” in Article 1, Section 2 is part of the clause requiring a census every ten years. “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, 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.” It was designed to limit the number of representatives AND thereby the political power of the Southern, slave-holding states, so that slavery could be ended after 1808 (Art. 1 Sec. 9 promises no action will be taken on slavery before that year). The southern, slave-holding states wanted ALL slaves to count for number of representatives, while the northern states wanted NO slaves to count. This compromise appeased the South without giving them so much power in the House that they could prevent future actions against slavery. It also established the legal precedent for slaves to be considered PERSONS – before this clause, there was no established basis in law to do so.
ALL legislation that needs money starts in House. Here is the true power!! The House could and SHOULD zero-fund any un-Constitutional act, law, or agency. There is NO requirement for Senatorial or Executive branch agreement; like it or lump it, the House is in charge of the money they must take, for government needs, from their constituents/neighbors.
Article 1 Section 10 lists the items the states are NOT allowed to do: make independent treaties with other nations, issue money that is not backed by gold or silver, impose tariffs on goods from other states, keep their own armies, stop contracts from being enforced, and grant titles of nobility.
Article 1 Section 8 lists the enumerated powers of Congress, which are the ONLY items Congress has ANY jurisdiction over.
Chief Justice John Marshall, writing in the Marbury v. Madison decision of 1803, said, “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written." This is an extremely important sentence – it states plainly that the powers of Congress are limited, and that Congress MUST stay within those powers. Interpretation of the Constitution by original intent is demanded by this statement by Justice Marshall, dated a short SIX years after the ratification of the Constitution. What are those “enumerated powers?”
Article 1, Section 8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence [sic] and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and post Roads;
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;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
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;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;—And
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.
That’s it! NOTHING about education, oil drilling, health care, wind farms, food safety, farmers’ kids working on the family farm, fuel efficiency standards, or any of the other gazillion areas where the Federal government is now unConstitutionally meddling in and interfering with our lives.
You will note that the first clause of Art. 1 Sec. 8 uses the term “general Welfare” of the states. In Federalist #41, it is specifically stated that this first clause “employs general terms which are immediately followed by the enumeration of particular powers which explain and qualify, by a recital of particular, the general terms. It is error to focus on the general expressions and disregard the specification which ascertain and limit their import; thus, to argue that the general expression provides an unlimited power is an absurdity.” (Excerpted from the last four paragraphs of Fed #41.) What this means is that “general welfare” applies to items which are a general good to the population at large, and not to anything that benefits one particular person or sets of individual persons. You may not drive – but the trucks that bring groceries to your local store use the roads. So roads and highways are a “general welfare” as they benefit shoppers, travelers, shippers, truckers, commuters, farmers, and more.
Art. 1 Sec. 8 Clause 3 uses the term “regulate Commerce,” which has been misused to regulate just about everything under the sun. The Founders addressed this clause in several of the Federalist papers (see #22, #42, #44, and #56, specifically). In these various papers, they explain that there are two purposes to this clause. The first purpose is to prohibit a practice widespread under the Articles of Confederation: the imposition of tariffs on goods from other states – basically New York treating Virginia as though it were a foreign country, and making commerce extremely difficult and goods amongst the states far more expensive than they should have been. The second purpose was to permit the Federal government to impose duties on imports from and exports to other countries.
Article 1 Section 8 has several other items that warrant some explanation for modern eyes.
A “Letter of Marque & Reprisal” is a government license authorizing the crossing of international borders, attack or other action against enemy forces, and the taking of “prizes” by non-military personnel (this last refers to capture of sea-going vessels). The tactic was widely used by Britain and France (among others). Privateers held such letters, as did “Corsairs” (the term comes from the French term “lettre de course”). Today’s equivalent might be the company formerly called Blackwater Worldwide, a private military and security company.
The limitation on funding for the Army – funds must be renewed every two years – but there is no such limitation on funding for the navy. The Founders were still very chary of a standing army, and wanted any land forces to be under close supervision of Congress and the civil government, with the purse-strings ready to rein them in. A strong navy was considered crucial to national security – as well as safer for the populace, as the navy was out patrolling the coasts and seas, not wandering through towns, under full sail.
“Bill of Attainder” is another holdover from the days of rule by Britain. One of the techniques used to ruin persons the King (with the agreement and/or collusion of Parliament, in Colonial times) considered enemies, or dangerous, was to put them under a “writ (or bill) of attainder.” Under such a writ, you were considered convicted of a serious crime against the Crown, your civil rights were permanently nullified, and you could no longer own property or leave it to your family by will. Your property escheated to the Crown, and your family and heirs were left destitute. The US Constitution specifically prohibits this practice. Each state also specifically prohibits attainder.
No titles of nobility may be granted by either the Federal or State governments.
The last item to discuss in Article 1 is the “necessary & proper” clause (last clause of Section 8). This is yet another clause misused by Congress to assume powers that were not delegated to it. However, Federalist #29 (plus notations in #33 and #44) clearly explains that this clause was to delegate to Congress the power to pass laws necessary and proper to fulfill its declared powers. Madison, in Federalist #44, says, “The clause merely permits the execution of powers already delegated and enumerated in the federal Constitution. No additional substantive powers are granted by this clause” (emphasis added). Additionally, Federalist #45 states, “The powers... will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce... The powers reserved to the several States will extend to all the objects which... concern the lives, liberties, and properties of the people.”
This first Article of the Constitution carefully and clearly delineates the very few areas of federal jurisdiction, and reserves all else to the states and the people. It establishes representation for the people as well as the states as sovereign entities. It shows that the areas of federal control are mainly areas involving interactions with other countries, with a very few areas of inter-state jurisdiction. Next we will look at Article 2, the Executive Branch.
Primary References:
“Good To Be King” Michael Badnarik, 2004, The Writer’s Collective
“The 5,000 Year Leap” W. Cleon Skousen, 1981, National Center for Constitutional Studies
“The Federalist Papers” (available online)
PubliusHuldah.wordpress.com (attorney and Constitutional scholar)
copyright 2012 by the author