Skip to main content

FridayConstitutional

Happy Friday! Welcome the fifth installment of Constitutional Friday. This is a repost of a series looking at the whole of the United States Constitution piece. The intent here is to talk about what the meaning seems to be. It is a learning experience, so if you think I am misinformed or interpreting something incorrectly, then speak up!

If you want to read the earlier sections of this series you can find them at the following links:

Friday Constitutional 1 - Preamble, Article One, Sections 1 and 2
Friday Constitutional 2 - Article One, Sections 3 and 4
Friday Constitutional 3 - Article One, Sections 5 And 6
Friday Constitutional 4 - Article One, Sections 7 And 8

Article One; Section Nine

Clause One:

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.

This clause starts out with migration but it is really all about the importation of people, or in the English into English translation, slaves. It makes it clear that prior to 1808, there will be no federal restrictions on immigration or importation (what a euphemism!) other than what the individual States determine. The duty is an interesting point, to me it looks like Southern States were already feeling the heat for slavery and wanted to be sure that the new Federal Government would not tax their economic model out of existence. Ten dollars was a pretty big tariff at the time, but not so high as to make slavery uneconomical.

Clause Two:

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.

This is clause that protects your right to know what you are being held for, if you are arrested. I have been told that the Latin literally translates to "Produce the Body". This is direct hold over from the Magna Carta that limited the powers of the English King. It is clear and simple; you can not abridge this privilege, ever, with two exceptions; Invasion or Rebellion. That the 109th Congress was as uniformed as to attempt to do limit this privilege for prisoners we held in Cuba, is a sad thing indeed. Is there anyone else that thinks a quiz on the Constitution should be administered before a person can serve at the Federal level? It is not that I think that there needs to be a passing grade, just a document that shows how much or how little a Representative or Senator actually knows about our Constitution would be very useful in picking our officials.

Clause Three:

No Bill of Attainder or ex post facto Law shall be passed.

A Bill of Attainder was an English legal tactic where a person could be declared "tainted" and thus loses all of their property and civil rights. This was one way that English Kings could remove troublesome lords or political enemies. The Framers were having none of that. They made it very clear that it is not allowed, under any circumstance in the United States. This is part of your protections from the power of the Government. They can not by fiat declare that your civil rights and property rights are null and void. Unfortunately this is commonly viewed as an all or nothing type of prohibition, which is how some of the laws stripping felons who have served their terms of their voting rights survive.

Ex post facto translates to "after the fact". This part of the clause is to prevent the Government from changing the law after the fact to make an action criminal or have a civil penalty. This does not mean that you can not change laws as new situations arise, you can, but you can not hold those that acted under the old version of the law responsible for the new facets. Again this was intended to keep the power of the Government from being abused for political purposes.

Clause Four:

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

This clause set out that taxes should be levied against the States in proportion to the population of each state. In effect it would mean that very large population states would pay a higher federal tax than those with lower populations. There is a lot that could be said about this, but the 16th Amendment completely changed it. That amendment reads:

The Congress shall have 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.

As you can see, it totally drops the proportional nature by State and moves to a system where individuals would pay the same level of taxes, based on criteria the Congress would set, as those living in larger or smaller population states. Basically it paves the way for income tax as we currently know it. Prior to this change it a progressive tax system would be impossible because of the population requirement. You would find rich folks all have homes in the states with the smallest population for the purposes of taxation.

Clause Five:

No Tax or Duty shall be laid on Articles exported from any State.

This clause was designed to help the fledgling United State stay together. By preventing protectionism between states, it made it more likely that goods would flow freely between them. When your economy is intertwined it is less likely that you will break your country into smaller pieces. It worked, even with the Civil War. One of the reasons that the Confederacy eventually lost was that they had specialized in agriculture while the Northern states had much more manufacturing. If there had not been this incentive to specialization by region and free flow of trade, the Confederacy states might have had the industrial infrastructure to hold off the Union.

Clause Six:

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

.

This clause was created to keep States from imposing and collecting duties from trade by sea, on trade that was passing through. It is similar to Clause Five in that it is intended to allow all states an even playing field for their products, at least between the states.

Clause Seven:

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.

This clause says that the money in the Treasury can only be disbursed by Laws enacted in the Congress. It also provides that a public record of all such expenditures will be made public on a regular basis.

This brings up an interesting point, the loan guarantees that the Treasury made to bail out banks without public scrutiny seem to be in conflict with this clause. It may be that there is legislation that allows this or that they are playing it on the terms of they only have to disclose the expenditures. If the latter is the case the argument is that until one of the banks defaults and the Government has to cover the losses there is no expenditure, so they do not have to disclose it, yet. This seems to be a real problem though as once you get to that situation, you would have to have an appropriations bill that covers the expenditures or it would be illegal. Do any of the attorneys out there know if this is the case?

Clause Eight:

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 whatever, from any King, Prince, or foreign State.

This clause has two parts. The first is pretty simple; the United States will not grant any title of nobility. The Framers wanted to get away from hereditary power and this seemed to cover it. They did not take into account the possibility that families would amass such as large fortune as to be default nobility, but it was a good solution for the problem as they saw it then.

The second part prohibits gifts to any official from any foreign government without Congressional approval. I assume that there are laws on the books that give general guidelines for this, including reporting, so it does not have to be a case by case Congressional approval. This makes sense as the original intent seems to be preventing other governments from subverting the new Republic by bribing officials into helping with Titles, lands and other things of value.

Article One; Section Ten:

Clause One:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

This clause is designed to prevent individual states from doing anything that is the Federal Government is not allowed to do. It seems that there was some concern that states which did not like some of the new federal conditions would try to make an end run around the Constitution by passing State level laws in conflict with the Federal ones. The Arizona "Papers Please" law is an example of this. Also the new law that was introduced that would allow them to vote on any federal law they did not like would run aground of this provision.

Clause Two:

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's 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 Controul of the Congress.

This clause seems to be designed to prevent the States from making their own profit on foreign trade at their ports. They are allowed to charge more than the cost of inspections, but any net revenue reverts to the Federal Government. It also allows the Congress to override any laws on inspections of cargo that it wants. In a nut shell, the control of the ports is a Federal privilege. You can make any law you like as a State, but you have to be aware that the Congress will change it at its will.

Clause Three:

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.

This clause (like many of them) starts out talking about one thing, but is really about the rest of the verbiage. In this case it prohibits states from putting a duty on tonnage (cargo) then moves on to more serious things.

The second part of this clause states that without the approval of the Congress no state may keep domestic or foreign troops or ships within its boundaries. It also prohibits the states from making mutual protection pacts domestically or with foreign governments without Congressional approval. It does allow the States, if invaded, to defend themselves separately. This is clearly due to communication lag that existed at the time of the writing of the Constitution. It seems unlikely that we would fail to notice if one of the States were invaded today.

This brings us to the end of Article One (woo hoo!). Next week we will start in on Article Two. What are you thoughts on Constitution so far?

The floor is yours

Originally posted to Something the Dog Said on Fri Feb 11, 2011 at 06:24 AM PST.

EMAIL TO A FRIEND X
Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags

?

More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

  •  Tips? Flames? (13+ / 0-)

    Thoughts? Questions? Emotional Outbursts?

    Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

    by Something the Dog Said on Fri Feb 11, 2011 at 06:24:24 AM PST

    •  A small suggestion: (2+ / 0-)
      Recommended by:
      Something the Dog Said, Mayfly

      And feel free to ignore this, because I'm just about the only person left on earth who likes to include this in his constitutional analysis, but I like to see if constitutional provisions have analogues in the Articles of Confederation. I find it makes it easier to understand the purposes and original understandings of certain passages.  

      Today's section, for example, is very closely related to Article of Confederation VI, and the structure of that Article suggests a broad purpose to concentrate the foreign policy powers in the federal government's hands alone, and, furthermore, to limit the power to initiate war to the Legislature.

      ‎"Our greatest asset as advocates is a deep cognizance of our own ignorance, plus a willingness to do something about it." -Joseph Mitchell Kaye, 1966.

      by JR on Fri Feb 11, 2011 at 09:51:06 AM PST

      [ Parent ]

  •  Why don't you skip directly to Article V - the (0+ / 0-)

    only clause in the Constitution that can save the Republic from its current Rulers, who are far more oppresive than King George ever dreamed of being.

    http://www.foavc.org/

  •  Yeargh. :) (2+ / 0-)

    You did ask for emotional outbursts. :)

  •  Morning Dog! (3+ / 0-)

    Thank you for this wonderful series. You so rock!

    FYI:

    bubbanomics has posted a tribute-thank you diary for jotter.

    thought you would want to know.

    ;)

    "the Devil made me buy this dress!" Flip Wilson as Geraldine Jones

    by BlueJessamine on Fri Feb 11, 2011 at 06:44:40 AM PST

    •  Thanks for the heads up! (1+ / 0-)
      Recommended by:
      BlueJessamine

      And I am glad you enjoy this series. I loved doing it the first time, and I am having just as much fun with it this time around.

      Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

      by Something the Dog Said on Fri Feb 11, 2011 at 06:50:24 AM PST

      [ Parent ]

  •  Thanks for the diary n/t (1+ / 0-)
    Recommended by:
    Something the Dog Said

    Mr. Boehner, where are the jobs?

    by Tx LIberal on Fri Feb 11, 2011 at 07:00:52 AM PST

  •  Congress violated Section 9 Clause 3 (2+ / 0-)
    Recommended by:
    Something the Dog Said, Mayfly

    when they passed the anti-ACORN act.

    Unfortunately they got away with it.

    With all this manure around, there must be a pony in here somewhere. - Count Piotr Vorkosigan

    by jrooth on Fri Feb 11, 2011 at 07:32:12 AM PST

    •  No, that only applies to criminal activity. (0+ / 0-)

      You can defund anything at any time for any reason.

      Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

      by Something the Dog Said on Fri Feb 11, 2011 at 07:37:05 AM PST

      [ Parent ]

      •  I disagree. (1+ / 0-)
        Recommended by:
        Mayfly

        See, for instance, U.S. v. Lovett (1946), U.S. v. Brown (1965), and Cummings v. Missouri (1866), all of which concerned bans on employment of certain individuals.

        With all this manure around, there must be a pony in here somewhere. - Count Piotr Vorkosigan

        by jrooth on Fri Feb 11, 2011 at 07:47:28 AM PST

        [ Parent ]

        •  Congress hasn't banned former ACORN workers from (0+ / 0-)

          ...employment anywhere else as a result of their employment with ACORN.The target of the defunding was the organization, not the worker's future employment public or private.

          I think the inference that Congress may never withdraw it's support lacks a constitutional basis.

          "Most people would sooner die than think; in fact, they do so." ...Bertrand Russell

          by sebastianguy99 on Fri Feb 11, 2011 at 10:06:22 AM PST

          [ Parent ]

          •  That's not the point. (0+ / 0-)

            The point is that prior Supreme Court rulings establish that purely economic (as opposed to criminal, as Something the Dog Said claimed) sanctions can be bills of attainder and thus unconstitutional.

            And I'm by no means saying congress can't choose to defund a program.  What they can't do is select some individual or corporation and pass a law saying they can't participate in government programs, absent some judicial conviction of said person or corporation.

            So, Congress can say "we're no longer going to fund voter registration efforts." But they can't say "we're going to fund voter registration efforts but ACORN may not participate."  But that's exactly what they did.

            With all this manure around, there must be a pony in here somewhere. - Count Piotr Vorkosigan

            by jrooth on Fri Feb 11, 2011 at 11:24:31 AM PST

            [ Parent ]

            •  No the point is no Bill of Attainder (0+ / 0-)

              Yes, if Congress has the authority to fund something, it has the right to defund it as well. It defies logic to insist otherwise. More importantly,the cases you cite do not deny that Congress may stop funding something it previously funded.

              "Most people would sooner die than think; in fact, they do so." ...Bertrand Russell

              by sebastianguy99 on Fri Feb 11, 2011 at 12:09:07 PM PST

              [ Parent ]

              •  I don't know how I can be any clearer. (0+ / 0-)

                The issue is not stopping funding something they have previously funded.  Of course they can do that.

                It's making a law that punishes specific persons (including corporations) that they can't do.  And those cases I cited established that selectively depriving individuals of economic opportunity constitutes punishment as that term is used in determining if a law is a bill of attainder.

                With all this manure around, there must be a pony in here somewhere. - Count Piotr Vorkosigan

                by jrooth on Fri Feb 11, 2011 at 01:35:40 PM PST

                [ Parent ]

              •  For support of my contention that this applies (0+ / 0-)

                to punishment of corporations, not merely humans, see Consolidated Edison Co. v. Pataki (2d Cir. 2002).  Admittedly, that's a second circuit decision, not SCOTUS, but SCOTUS allowed it to stand.

                With all this manure around, there must be a pony in here somewhere. - Count Piotr Vorkosigan

                by jrooth on Fri Feb 11, 2011 at 01:41:52 PM PST

                [ Parent ]

  •  On Habeus Corpus - (0+ / 0-)

    A few things about that phrasing are interesting:

    1. It is in Article I - ergo, suspension of it is a function of the Congress, not the Executive or the Courts.
    1. It is specifically designated a "Privilege", not a "right". This language is not accidental. Speaking about "habeus corpus rights" is actually a misnomer. This has important consequences for the discussion about detainees, as most people seem to get this fundamental distinction wrong, and then argue from incorrect premises.

    --Shannon

    "It is better to die on your feet than to live on your knees." -- Emiliano Zapata Salazar
    "Dissent is patriotic. Blind obedience is treason." --me

    by Leftie Gunner on Fri Feb 11, 2011 at 07:42:19 AM PST

  •  Clause six and the civil war (3+ / 0-)

    This provison caused huge problems in the Civil War.

    The Union position throughout was that the 'seceeding States' were still part of the Union. This approach was especially stressed in the early months.

    The Union wanted to close down traffic into southern ports. But this Article prevented them from doing so discriminately, that is only against Southern ports. The Federal Government could only carry out actions applying to all ports.

    So the Union had to announce and enforce a war mesure - a blockade. This automatically gave the South belligerant status under international law.

    The Union later tried to blame Britain for this  under-the-counter belligerancy recognition because Britain responded to the blockade by declaring its neutrality, which act also implies granting the South belligerancy status.

    But the problem was the serpentine legalistics of the US constitution.

    Violence is the last refuge of the incompetent.

    by saugatojas on Fri Feb 11, 2011 at 07:42:52 AM PST

  •  section 10 clause 3 (1+ / 0-)
    Recommended by:
    Something the Dog Said

    If no state can harbor troops, would that preclude the state militia now being proposed in Idaho?

    •  Seems like it to me. Even the National Guard (0+ / 0-)

      had the umbrella of the Federal Government. But dumb-asses always ignore the parts of the Constitution they don't like.

      Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

      by Something the Dog Said on Fri Feb 11, 2011 at 08:02:17 AM PST

      [ Parent ]

    •  Probably not. Troops are professional soldiers... (2+ / 0-)
      Recommended by:
      jrooth, Something the Dog Said

      ...who are full-time members of the military, while militia are citizens who may be organized, armed and disciplined, but whose primary occupations are not military.

      I haven't researched the Idaho proposal with any depth, so these are just preliminary thoughts, but what Idaho seems to be talking about is a permanent posse more than anything else. To me, it seems more militia than troops. The question that I think Idaho's scheme raises is whether a state may maintain a militia that isn't subject to federalization.

      I think the resolution will be that Idaho cannot have a militia not subject to federalization, but that this paramilitary won't technically constitute "troops." So it's not unconstitutional on its face, but if the state refuses to send the militia if called upon by the federal government to do so, that would be unconstitutional.

      ‎"Our greatest asset as advocates is a deep cognizance of our own ignorance, plus a willingness to do something about it." -Joseph Mitchell Kaye, 1966.

      by JR on Fri Feb 11, 2011 at 09:29:51 AM PST

      [ Parent ]

      •  Yeah ... state militias were the common practice (0+ / 0-)

        through the Civil War at least, so I have a hard time seeing this as unconstitutional.

        With all this manure around, there must be a pony in here somewhere. - Count Piotr Vorkosigan

        by jrooth on Fri Feb 11, 2011 at 12:02:11 PM PST

        [ Parent ]

        •  But where they under the umbrella of the Federal (0+ / 0-)

          command? That would be what makes all the difference to me. It is one thing they fall under the Commander in Chief, and another if they fall under only the control of the state.

          Getting Democrats together and keeping them that way is like herding cats that are high on meth, through L.A., during an earthquake, in the rain -6.25, -6.10

          by Something the Dog Said on Fri Feb 11, 2011 at 03:28:55 PM PST

          [ Parent ]

          •  Sure. (0+ / 0-)

            While normally under the command of the state governors, the President had the power to nationalize the militias in time of war (as Lincoln did in the Civil War.)

            With all this manure around, there must be a pony in here somewhere. - Count Piotr Vorkosigan

            by jrooth on Fri Feb 11, 2011 at 07:09:04 PM PST

            [ Parent ]

  •  A little more on §10 (2+ / 0-)
    Recommended by:
    jrooth, Something the Dog Said

    Article I, Section 10, clause 4 strictly limits the ability of states to maintain or exercise military power.  The states may not "keep troops, or ships of war in time of peace" without Congress’s consent, nor may they "engage in war, unless actually invaded, or in such imminent danger as will not admit of delay."

    These restrictions suggest that Congress’s power to control the availability of military forces is meant to be quite extensive, and also that Congress should be the entity to determine whom America will fight against, absent invasion or imminent threat compelling war without congressional acquiescence.

    This section compares very well to the Sixth Article of Confederation, which also consists of rights denied to the states.  In the AOC, Article VI was meant to create a uniform national foreign policy--including war policy--in order to ensure that no single state could draw all others into war (which all would then have to pay for).  

    Last year, I developed an interpretive theory of the war powers provisions in the Constitution that I call "War Avoidance." Under this theory, the central idea behind both Article of Confederation VI and the constitutional clauses vesting war powers in Congress's hands was to ensure that only Congress (or an enemy's attack) could commit the United States to war, either through open declarations, hostile actions, or foreign policies that might antagonize other nations.  Neither the states nor the Executive Branch may properly tread on this Congressional authority. (Of course, our history is replete with examples of the President doing just that, but Congress has almost always offered overwhelming post-hoc approval.)

    ‎"Our greatest asset as advocates is a deep cognizance of our own ignorance, plus a willingness to do something about it." -Joseph Mitchell Kaye, 1966.

    by JR on Fri Feb 11, 2011 at 09:45:21 AM PST

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site