Direct Tax Clause

“England may be the mother of Parliament, but from the Boston Tea Party to this administration, it’s the United States that has been the mother of tax revolt.  You know, that’s a pretty good line.  I can hardly wait to try it out on Margaret Thatcher.”

Ronald Reagan, Remarks at a briefing for members of the American Business Conference, The White House, March 23, 1988

“No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.”  Article 1, Section 9, Clause 4, US Constitution

This clause is known as the Direct Tax Clause.  It underlines the statement in Article 1, Section 2, Clause 3 (the three-Fifths Clause), which states, “Representatives and direct taxes shall be apportioned among the several states”.

Apportioned means an allotment based on state population.

Enumeration means number of or count of.

One of the intentions of the Writers of the Constitution was to give the federal government the ability to raise money.  This was not a strong point in the Articles of Confederation.

In order to understand direct taxation, it is important to understand indirect taxation.  Indirect taxes are generally taxes on articles of consumption.  (Duties, Imposts, and Excises).  These taxes are considered “safe” for Congress to pass (people wouldn’t get mad and vote them out of office).  The burden was shifted to the consumers.

As Alexander Hamilton, writing as Publius, states in Federalist 21: “

“If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds. This forms a complete barrier against any material oppression of the citizens by taxes of this class, and is itself a natural limitation of the power of imposing them.”

Scholars are divided on the meaning of direct tax.  Basically, direct tax would be a tax among the states based on population.

In debates during the time of the Founding, there were two forms of taxation for which apportionment was intended: capitation and land (included slaves).  Capitation tax is generally known as a “head tax”.  Each person in the country would pay a certain amount.

Through the years, there has been argument in the Courts as to whether direct taxation goes beyond capitation and land taxes.  The general conclusion is that it does not.  If Congress tries to collect direct taxes beyond that point, Congress would be considered to be overreaching.  Direct taxes were to be used in an emergency.  Congress has seldom levied direct taxes.

The issue of direct taxation became less of an issue with the “passage” of the 16^th Amendment.  It states:

“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.”

Sources say this was ratified on February 3, 1913.

With the direct tax clause, we the people allow Congress to pass taxes indirectly –capitation and land.

We the people limit the authority of Congress to pass direct taxes, which could be unfair and/or burdensome.

References:

Findlay, Bruce Allyn and Findlay, Esther Blair.  Your Rugged Constitution.  Stanford: Stanford University Press, 1950

Hannaford, Peter.  The Quotable Ronald Reagan.  Washington, DC: Regnery Press, 1998

http://www.heritage.org/constitution/#!/articles/1/essays/64/direct-taxes

US Constitution

Online dictionaries

Preventing Instruments of Tyranny

 

“No Bill of Attainder or ex post facto Law shall be passed.“ Article 1, Section 9, Clause 3 US Constitution.

 

A Bill of Attainder is an act passed by a legislature to punish a person without a trial in court. Bills of Attainder could condemn persons or groups of people to death without a trial. Bills of Attainder also required the “corruption of blood”, which means that heirs of the person condemned to death could not inherit the estate of the condemned person. This practice would be used by a tyrannical or dictator-type of government to punish the citizens that oppose them.

The Supreme Court set guidelines to determine if a law (legislation) violates the Bill of Attainder Clause:
1. Legislation specifies the affected persons
2. Law includes the punishment
3. There is lack of a judicial trial

Ex post facto literally means “after the fact”. It means that someone is criminally punished for conduct that was lawful when it was done. If a law is passed today, it cannot be used to convict a person for an act he committed yesterday.

Per Daniel Troy, Senior Vice-President and General Counsel, GlaxoSmithKline, writing for Heritage Foundation:

“In The Federalist No. 78, Alexander Hamilton noted that “the subjecting of men to punishment for things which, when they were done, were breaches of no law” is among “the favorite and most formidable instruments of tyranny.” Thomas Jefferson noted in an 1813 letter to Isaac McPherson “the sentiment that ex post facto laws are against natural right.”

Justice Samuel Chase defined ex post facto laws as:

“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.

2nd. Every law that aggravates a crime, or makes it greater than it was, when committed.

3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.

4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.”

In addition to Article 1, Section 9, Clause 3, the Founders also prohibited the states from passing Bills of Attainder and ex post facto laws. This is found in Article 1, Section 10, Clause 1.  This shows how strongly the Founders felt about the danger of these practices – that they specifically addressed these points at the federal and state levels.

With Article 1, Section 9, Clause 3, we the people deny Congress the right to punish a person without a fair trial and to declare any act a crime that was not a crime at the time the act was committed.

We the people get assurance that no one will receive punishment by a legislative act and no one can be punished for an act committed before a law was written to prevent his or her behavior.

References:

http://www.heritage.org/constitution/#!/articles/1/essays/62/bill-of-attainder

http://www.heritage.org/constitution/#!/articles/1/essays/63/ex-post-facto

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

US Constitution

Necessary and Proper Clause

“To make all laws which shall be necessary and proper for carrying into execution the foregoing power, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.” Article 1, Section 8, Clause 18, US Constitution

carrentals.co.uk

 

The Necessary and Proper Clause is sometimes known as the Elastic Clause because it expands the enumerated powers of Congress. The Framers included the Necessary and Proper Clause for two reasons:
1. To facilitate the organization of government. An example would be the power Congress has to organize the judicial branch (See Article 1, Section 8, Clause 9). Without this clause, the laws organizing other branches would have gone against the principles of enumerated powers and separation of powers.
2. To help make the enumerated powers of Congress effective. (To give the enumerated powers some “teeth”). It supports the laws needed to carry out the powers listed in Section 8.

However, this clause does not give Congress the implied power to make laws for any purpose whatsoever; only for the purpose of executing its enumerated powers and “all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.” {Meaning the President and the Federal courts} Because of the “all other powers” phrase, the Congress has the power to share the responsibilities of the other departments. Examples would be when Congress passes laws to initiate treaty obligations and to organize the Federal court system.

The Necessary and Proper clause gives flexibility to allow the powers of Congress to be adjusted to changing needs of the nation. Congress can use various means to carry out its delegated powers. As an example, the Congress has the power to regulate foreign and interstate commerce. This means that Congress can improve rivers, harbors, rail systems, and airports to help with commerce. The clause allows for any means to be used unless the Supreme Court rules that the law created is not “necessary and proper” to the delegated power.

The powers of Congress can be classified as:
1. Enumerated or delegated, as in Article 1, Section 8
2. Implied as seen in Article 1, Section 8
3. Prohibited, as in Article 1, Section 9
4. Inherited (from British Parliament and early State constitutions), as seen in Article 1, Section 5

The powers can be further divided into:
a. Exclusive – as in the power of Congress to declare war
b. Concurrent – a power that Congress shares with the President

Other powers are called reserved or residual powers. There are the powers that the people or the states did not delegate to Congress or government. These reserved powers are protected by the 10th Amendment, which states,” The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states, respectively, or the people.”

charlestonteaparty.org

 

Over the years, the concept of States’ Rights has weakened and power formerly controlled by the States has been shifted to the central government. (Per Liberty, Order, and Justice, page 306)

We the people give Congress the power to make laws necessary and proper for the government to function as written in the Constitution.

With the Necessary and Proper Clause, we the people get assurance that the government can operate day-to-day, as we have designated.

References:

http://www.heritage.org/constitution/#!/articles/1/essays/59/necessary-and-proper-clause

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

McClellan, James. Liberty, Order, and Justice. Indianapolis, Liberty Fund, Inc., 2000

US Constitution

Organizing the Militia

“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.” Article 1, Section 8, Clause 16, US Constitution

This clause is known as “organizing the militia”. The original purpose of the militia was to protect the people of the state from the federal government. The Anti-Federalists thought that the Congress would gradually let the funds for the Militia disappear. The Anti-Federalists advocated the Second Amendment to protect the citizens’ right to bear arms.

Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

The Second Amendment did protect the right to bear arms, but the Congress still controlled the Militia. The Militias could still function as originally intended within the State, but Congress has the power to organize, discipline, and arm the Militia for federal purposes.

With the Organizing the Militia clause, the Federalists tried to make the Militia into a national reserve of uniform, interchangeable units.

In 1792, Congress passed the Uniform Militia Act. This established an “obligated” militia. This means that all able-bodied white men between the ages of 18 and 45 had to enroll. This Militia had a very poor performance during the War of 1812. The obligated militia was disbanded. After that, the “uniformed” militia replaced it. Uniformed militia means that it was made up of people who chose to serve. The National Guard replaced the uniformed militia. The National Guardsmen remain volunteers, a Citizen-Soldier.

The National Security Act of 1916 made state militias available for overseas duty as well as being used for domestic disturbances. This functionally stripped the states of militia powers. States may call up the National Guard, but federal government needs take precedence.

“We the people” originally gave Congress the power to organize, arm, and discipline the Militia. Today, that power still rests with Congress, but the intent of having the Militia protect the people of the states from the federal government no longer exists.

The “organizing the militia” clause was originally intended to allow a means for the people of a state to protect themselves from the federal government. Today, this clause allows for “we the people” to have the National Guard for protection during domestic disturbances as well as protection here or abroad as the federal government sees fit.

References:

http://www.heritage.org/constitution/#!/articles/1/essays/56/organizing-the-militia

Click to access lesson-6.pdf

US Constitution

Always Ready, Always There

“To provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions;” Article 1, Section 8, Clause 15, US Constitution

“The top priority of the federal government is the safety of this country.”
Ronald Reagan, Address to a joint session of the Oklahoma State Legislature, March 16, 1982

During the founding, the idea of a militia came from the concept of posse comitatus. This existed under British Common Law. It is the authority of a law officer to conscript any able-bodied to assist him. When order was threatened, the “shire-reeve” (sheriff) would send out a message to the citizens. Any who heard the message were obligated to assist in catching a criminal or maintaining order.

The Framers transferred the power to call out the militia from the local authority to Congress. The group known as the Anti-Federalists was against a strong central government. They felt that this gave too much power to the Congress (Federal government). They wanted the militia to stay under state control.

The debate continued and in 1795:
“Congress refined the language authorizing the President to federalize the militia:
[W]henever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the president to call forth such number of the militia of the state, or states most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his orders for that purpose to such officer or officers of the militia, as he shall think proper.” Per Mackubin Owens, writing for Heritage Foundation.

Still the argument about this continued until 1827, when the Supreme Court heard the case of Martin v. Mott. Justice Joseph Story made it clear that the President has the exclusive right to decide that a situation is serious enough to call out the militia. The state governors have concurrent authority to call out their state militia to handle civil and military emergencies.

We know that state militia as the National Guard.

There is also law in place to prevent the Army and Air Force from being used as a posse comitatus.

We the people give Congress the power to keep the National Guard trained and equipped for emergencies.

We the people get a group of (all-volunteer) citizens in training to add to the regular army when needed and to handle civil and military emergencies.

Here is a link to the National Guard web page:
http://www.nationalguard.mil/default.aspx

Here are the lyrics to the National Guard Song:
http://www.nationalguard.mil/about/song.aspx

Here is a great song about the National Guard:

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

http://en.wikipedia.org/wiki/Insurrection_Act

http://www.heritage.org/constitution/#!/articles/1/essays/55/militia-clause

US Constitution

Military Regulations

“To make rules for the government regulation of the land and naval forces;” Article 1, Section 8, Clause 14, US Constitution.

This clause is known as the Military Regulation Clause. The purpose of this clause is to establish a system of military law and justice outside the jurisdiction of the civil courts. The power to establish this was given to Congress.

Joseph Story, in Commentaries on the Constitution of the United States (1833) stated, “The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive.”

In 1775, the Continental Congress adopted codes of military law for the Army and Navy. John Adams wrote the law: Rules for Regulation of the Navy of the United Colonies (1775) and American Articles of War (1775).

After the adoption of the Constitution (1787), the First Congress decided both codes would continue. The two laws have been revised several times over the years.

In 1950, Congress passed the Uniform Code of Military Justice (UCMJ). The reason for creating this law was to eliminate differences between the Army and Navy codes and to reduce “command influence”.

Military courts fall into two categories:
1. Martial and military courts of inquiry – to deal with military personnel
2. Military commissions or tribunals – to deal with civilians who have fallen under military jurisdiction

Since 9/11, a controversial aspect of military justice is the establishment of military tribunals. Military tribunals in occupied territories are governed by International Law. In Dow v. Johnson (1880), the Court ruled that the law governing an army invading an enemy’s country is not the civil law of the invaded country or of the conquering country “but military law—the law of war.” Per Forte and Owens, writing for Heritage Foundation.

“The Court has upheld the authority of the President to try enemy aliens (and United States citizens working with them) by military tribunal in Ex parte Quirin (1942). The Court held that enemy aliens (in this case saboteurs, who had entered the United States in secret for the purpose of committing hostile acts) are not entitled to prisoner-of-war status, but are unlawful combatants who can be tried by military tribunal.” Per Forte and Owens, writing for Heritage Foundation.

With the Military Regulation clause, we the people give Congress the authority to establish and maintain the Uniform Code of Military Justice.
We the people get a separate court system for those in military service and civilians who fall under military jurisdiction. This system is specialized for the types of situations that arise during military service and in times of war or conflict.

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

http://www.heritage.org/constitution/#!/articles/1/essays/54/military-regulations

Anchors Aweigh!

“To provide and maintain a navy;” Article I, Section 8, Clause 13, US Constitution

“The top priority of the federal government is the safety of this country.”
Ronald Reagan, Address to a joint session of the Oklahoma State Legislature, March 16, 1982

The founders did not see the same kind of danger to liberty with having a navy as they did with having a standing army. They observed throughout history that the standing army was more likely to be used by a tyrant to overthrow or rule.

Congress has the power to provide and maintain the Navy. There are no rules about the funding being re-established every two years.

They also recognized that trade by sea was necessary for the country to be stable and grow. The Navy would be charged to protect that trade.

Within the first twenty years, the navy was in use two times as Europe went to war. The British and French warships and the corsairs of the Barbary States challenged the American trade by sea. With the Navy in place, the United States was able to hold its own in the Quasi War with France (1798-1800) and the War of 1812 with the British per Mackubin Owens, Professor of National Security Affairs, US Naval War College, writing for Heritage Foundation.

With the Navy Clause, we the people give Congress the Power to maintain the Navy.

The benefit to we the people is that we have a Navy in continuous operation, ready to protect the nation when necessary.

Here is a video of the Navy Song, Anchors Aweigh. Enjoy!

References:
Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

US Constitution

http://www.heritage.org/constitution/#!/articles/1/essays/53/navy-clause

You’re in the Army Now

“To raise and support Armies, but no appropriation of money to that use shall be for a longer term than two years;” Article 1, Section 8, Clause 12 US Constitution

“A truly successful army is one that, because of its strength and ability and dedication, will not be called upon to fight, for no one will dare to provoke it.”

Ronald Reagan, Address to the United States Military Academy, West Point, New York, May 27, 1981

The decision to have a standing army in the Untied States was a very controversial decision for the Founders. In the writing of the Constitution and founding of this country, the Founders respected the history of the past and tried to learn from it and apply proven principles. This gave the Founders a higher margin for success. Other countries that wanted to have a free type of government threw out history and learning from the past to start something “fresh” and “new”. With no foundation, this is often unsuccessful. This was shown by the French Revolution, which occurred in the same era of history as the American founding. One reason that the French Revolution was unsuccessful was that it had no solid foundation.

In looking toward history, the Founders knew the danger of a standing army. It is a well-known principle that he who controls the army controls the government. The Founders felt that a standing army was a dangerous threat to liberty. Historically, they saw the example of Julius Caesar marching his provincial army into Rome, overthrowing the Senate, destroying the republic, and laying the foundation for his empire. In England, Oliver Cromwell used the army to abolish Parliament and rule as a dictator.

In their own lives, they had seen the British Crown forcing the American colonists to house and otherwise support their troops. The colonists saw the British Army as an occupying force. Under British law, the King had the power to raise an army and to act as its commander-in-chief. The Founders did not want the executive branch to have the power to raise an army.

On the other hand, the Founders were aware of the dangers that other countries posed to the new republic. They were also aware that there could be internal rebellion.

The solution became that the Congress would have the power to raise and fund the army. The writers felt that the Congress was the branch that would be the closest to the people and would follow the will of their constituents. This grants immense military power to the Congress. It can draft citizens into the armed forces and require them to obey military law. It can obtain the equipment and supplies necessary to allow the army to function.

With the decision to give the power of raising and supporting the Army given to Congress, they then decided that the money to fund this should never be appropriated for longer than two years at a time.

With the Army clause, we the people give Congress the authority to raise armies, pay for them, and conduct total war.
The benefit to we the people is that we have assurance that armies are available when needed; and that our representatives, who should be the people most in tune with our local needs and situations, control the armed forces.

The link below is to a song from the 1940’s – You’re in the Army Now.

Enjoy!

http://www.authentichistory.com/1939-1945/3-music/03-Defense/19401127_Youre_In_The_Army_Now-Abe_Lyman.html

Here is the Army Unofficial Song:

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter.  The Quotable Ronald Reagan.  Washington, DC: Regnery Press, 1998

http://www.heritage.org/constitution/#!/articles/1/essays/52/army-clause

Federal Courts

“Each new generation of Americans inherits as a birthright the legal protections secured, protected and expanded by the vigilance of preceding generations. These rights – freedom of speech, trial by jury, personal liberty, a representative and limited government, and equal protection of the laws, to name a few – give every citizen a vested interest in American justice.”

Ronald Reagan, Proclamation for Law Day USA, April 15, 1983

“To constitute Tribunals inferior to the Supreme Court;” Article 1, Section 8, Clause 9, US Constitution

Congress has the power to create federal courts other than the Supreme Court. It has the power to determine their jurisdiction.

Jurisdiction is defined as: The geographic area over which authority extends; legal authority; the authority to hear and determine causes of action.

The other responsibilities that Congress has regarding how the courts will operate are:
1. Deciding how many judges there will be and where they will be located.
2. Through the process of confirmation, the Congress determines which of the President’s nominees will become federal judges.
3. Congress approves the federal court budget and appropriates money for the judicial branch to operate.

There are two types of federal courts – Trial Courts, also known as District Courts and Appellate Courts.

District Courts hear all categories of federal cases, including civil and criminal matters. There are 94 federal judicial districts.

There are also two special trial courts in the federal system:
• Court of International Trade, which deals with trade and customs issues
• US Court of Federal Claims, which deals with claims for monetary damages against the US

Appellate Courts hear appeals from District Courts in its circuit. It also hears appeals from federal administrative agencies. The 94 districts are organized into 12 regional circuits.

This is a list of federal courts and other entities, which are outside the management of the judicial branch. These are:
• Military Courts
• Court of Veterans’ Appeals
• US Tax Court
• Federal Administrative Agencies and Boards

This is a chart that shows the structure of the federal court system:

(If you click on the download button under the chart, you can see an enlarged version)

View this document on Scribd

This is a web page that can provide you with additional information about the federal court system: http://www.uscourts.gov/FederalCourts.aspx

We the people give Congress that authority to establish federal courts below the level of the Supreme Court. (The Judicial Branch is detailed in Article III of the Constitution).

We the people get a system of federal courts that can be adapted to the populations and territory of the US.

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

Hannaford, Peter. The Quotable Ronald Reagan. Washington, DC: Regnery Press, 1998

http://www.uscourts.gov

US Constitution

My Baby Just Wrote Me a Letter

http://www.likecool.com

“To establish post offices and post roads;” Article 1, Section 8, Clause 7, US Constitution.

This clause is known as the Postal Clause. The USPS (United States Postal Service) is an independent agency of the federal government responsible for providing postal service. It is one of the few government agencies specifically authorized by the Constitution.

A Post Road is a road designated for transportation of the mail.

Under the Articles of Confederation, the Congress had the power to establish and regulate post offices. The Constitution added the power to establish postal roads.
The Congress, in implementing the Constitution, passed an act in September 1789 that established a post office and created the Office of Postmaster General.  At that time, there were 75 post offices established (under the Articles) and 2000 miles of post roads existed. Benjamin Franklin was appointed the first Postmaster General.

One would think that this clause is pretty straightforward and simple. However, over the years, legal questions have arisen. Some of these are:

1. Whether Congress should direct where post offices should be located and over what roads mail should be carried or whether Congress should construct and maintain roads and post offices in the states.

2. Did Congress have the right to prohibit circulation of certain materials such as lottery tickets?

3. During World War I, there were questions about the government’s power to ban incendiary and disloyal materials. The Supreme Court has affirmed that regulations as to what can be mailed cannot go against First Amendment rights. (First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging freedom of speech, or of the press; or the right of the people to peaceably assemble, and to petition the Government for a redress of grievances.”)

4. More recently, questions about what kind of mailing falls under the franking privilege for members of Congress. The frank is a reproduction of the member’s signature placed on the envelope instead of a stamp. There were many questions about what constitutes the “official business” of the Congressperson. The Franking Act of 1973 was enacted to define “official business” to “cover all matters which directly or indirectly pertain to the legislative process. This Act also established two special commissions – the House Committee on Congressional Mailing Standards and the Select Committee on Standards and Conduct of the Senate. These committees provide opinions as to what is “official business”.

Regarding the Postal Clause, we the people give Congress the power to:
• Set up and operate a system for handling the mail
• Assist in developing land, water, and air routes for mail delivery

We the people get:
• Uniform postage rates
• National distribution of the mail
• Better systems of transportation and communication

References:

Findlay, Bruce Allyn and Findlay, Esther Blair. Your Rugged Constitution. Stanford: Stanford University Press, 1950

US Constitution

http://www.wikipedia.org

http://www.heritage.org/constitution/#!/articles/1/essays/45/post-office