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

Enclave Clause

I should warn you that things in this city aren’t often the way they seem. Where but in Washington would they call the department that’s in charge of everything outdoors… the Department of the Interior?
Ronald Reagan, Remarks at the dinner of the Republican National Hispanic Assembly, September 14, 1983

“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,” Article 1, Section 8, Clause 17 A, US Constitution.

This clause is known as the Enclave Clause. The definition of enclave is “a distinct territorial, cultural, or social unit enclosed within or as if within foreign territory”.

Here are some facts about Washington, D.C.:
• Washington, D.C. is located along the Potomac River
• The site of the city was selected by George Washington
• Washington, D.C. is not a state – it is governed under exclusive legislation of Congress
• A resident of D.C. cannot vote for a US congressperson. They have a non-voting delegate in the House of Representatives and a shadow Senator
• The 23rd Amendment gave the residents of D.C. representation in the Electoral College. The residents can now vote for President of the US
• It is a federal district created specifically to be the seat of government
• It is the territory in which general government exercised full sovereignty, not beholden to any state, per Lee A. Carney, Partner, Baker and Hostetler, LLP, writing for Heritage Foundation
• Voting rights advocates would prefer to have D.C. become a state. This would require a constitutional amendment.

We the people give Congress the power to establish and govern our nation’s capital.

We the people have a national capital city that is not beholden to any one state. This concept gives the states equal power, not one state having more power than the others because it governs the national capital.

Here is a web page with good information about Washington, D.C.
http://www.smithsonianmag.com/travel/destination-hunter/north-america/united-states/east/washington-dc/washingtondc-history-heritage.html?c=y&page=1

Here is a video from History.com about the Nation’s Capital:
http://www.history.com/topics/washington-dc/videos#washington-dc

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/57/enclave-clause

http://en.wikipedia.org/wiki/History_of_Washington,_D.C.

http://www.smithsonianmag.com/travel/destination-hunter/north-america/united-states/east/washington-dc/washingtondc-history-heritage.html?c=y&page=1

Online dictionary

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

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

Power to Declare War

“History teaches that wars begin when government believes the price of aggression is cheap.”

Ronald Reagan, Address to the nation, US Allies, and the Soviet Union, The White House, January 6, 1984

“To declare war, grant Letters of Marque and Reprisal, and make rules concerning captures on land and water;” Article 1 Section 8, Clause 11, US Constitution

Clause 11 can be divided into three separate powers that have been given to Congress. These are:
• Declare War Clause
• Marque and Reprisal Clause
• Captures Clause

Declare War Clause

Congress has the power to declare war. The President has the power to conduct war. This is an executive power vested in Article 2 of the Constitution. The President is the Commander-in-Chief of the armed forces. The President has the responsibility to repel sudden attacks or invasions as Commander-in-Chief. In 1863, the Supreme Court gave the opinion that the President “has no power to initiate or declare war,” but if there was an invasion, “the President is not only authorized but bound to resist force by force…without waiting for any special legislative authority.” (Prize Cases 1863) per John Yoo and James C. Ho, writing for Heritage Foundation.

Yoo and Ho further explain that in declaring war, the legal relationships between the warring nations are altered. The warring nations have certain rights, privileges, and protections under the laws of war. A declaration of war gives notice of the legal grounds of the war. It gives the enemy nations an opportunity to make amends and avoid the consequences of war.

Declarations of war usually cause other legal actions such as expulsion of enemy aliens, breaking diplomatic relationships, and confiscating the property of the enemy.

There have been five times when Congress has declared war. These are:
• War of 1812
• Mexican-American War 1846
• Spanish-American War 1898
• World War I
• World War II
In the case of the War of 1812, the Congress actually declared war. In the other four, Congress declared the existence of a state of war.

Congress has throughout history, authorized other hostilities, but not with a formal declaration of war.

Letter of marque given to Captain Antoine Bollo via the shipowner Dominique Malfino from Genoa, owner of the Furet, a 15-tonne privateer, 27 February 1809
Source: Wikipedia

 

Marque and Reprisal Clause

According to Wikipedia, a letter of marque and reprisal was a government license authorizing a person (known as a privateer) to attack and capture enemy vessels and bring them before admiralty courts for condemnation and sale. Cruising for prizes with a letter of marque was considered an honorable calling combining patriotism and profit, in contrast to unlicensed piracy, which was universally reviled.

A “letter of marque and reprisal” would involve permission to cross an international border to effect a reprisal (take some action against an attack or injury) authorized by an issuing jurisdiction to conduct reprisal operations outside its borders.

The Marque and Reprisal Clause plays little if any role in modern law since the United States has not issued a letter of marquee and reprisal since the War of 1812.

Captures Clause

The Capture Clause grants Congress the power to make rules for the confiscation, disposition, and distribution of captured enemy property. This clause does not apply to the capture on enemy persons. (Yoo and Ho)

Under Clause 11 of Article 1, Section 8, we the people give the authority to Congress to declare war and set up the rules for the capture of enemy property.

The benefit to we the people is assurance that after studying the facts, Congress, and only Congress, may declare war.

References:

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

http://www.heritage.org/constitution/#!/articles/1/essays/49/declare-war

http://www.heritage.org/constitution/#!/articles/1/essays/50/marque-and-reprisal

http://www.heritage.org/constitution/#!/articles/1/essays/51/captures-clause

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

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

The Copyright Clause

“Individual farmers, laborers, owners, traders and managers – they are the heart and soul of development. Trust them, because whenever they are allowed to create and build, wherever they are given a personal stake in deciding economic policies and benefitting from their success, then societies become more dynamic, prosperous, progressive, and free.”
Ronald Reagan, Remarks at the International Meeting on Cooperation and Development, Cancun, Mexico, October 22, 1981

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

This clause is commonly called the Copyright Clause. The language is somewhat archaic today. The term “progress of science and the useful arts” would be called intellectual property today.

Intellectual Property:
Is defined in Wikipedia as the legal concept that refers to creation of the mind for which exclusive rights are recognized. The owner is granted certain exclusive rights to a variety of intangible assets such as musical, literary, and artistic works; discoveries and inventions, and words, phrases, symbols, and designs.

Types of intellectual property rights would be copyrights, patents, and trademarks. Other intellectual rights could be industrial design rights, trade dress, and some trade secrets. Clause 8 directly addresses copyrights and patents. Trademarks are addressed under the Commerce Clause.

A copyright is defined as the exclusive legal rights to reproduce, publish, sell, or distribute the matter and form of something (as a literary, musical, or artistic work).

A patent is defined as a grant made by government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time.

Trademark is defined as a symbol, word, or words legally registered or established by use as representing a company or product.

We the people give Congress the authority to pass laws which give inventors, authors, and artists, for a limited number of years, the exclusive right to make and sell the things they create.

The benefit to we the people is that we have the opportunity to use and enjoy the things created by American inventors and artists. You also have the privilege to enjoy the money and fame that may come from something that you invent or create.

References:

Online dictionaries

www. Wikipedia.org

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

To Regulate Commerce

potcoplays.wikia.com

  “When those who are governed do too little, those who govern can- and often will- do too much.”
Second Inaugural Address as Governor of California, Sacramento, January 4, 1971

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” Article 1, Section 8, Clause 3

The few words of the Commerce Clause have a tremendous impact on the power of the Congress to regulate and control international, interstate, and Indian Tribe activity. Since the clause is so broad and undefined, it lends itself to attempts at Congressional overreach of power. Through the years, this clause has been interpreted and re-interpreted many times by the Courts.

Commerce is defined as the buying and selling of goods on a large scale and between different places.

http://www.carseat.com

The first part of the clause “To regulate commerce with foreign nations” gives Congress complete and exclusive control over international commerce. This clause allows congress to pass import and export laws, to control the means of transportation of goods and services as well as communication about them, and to exercise control over the immigration process.

A positive aspect this power is that it helps to keep our commercial relationships with other countries uniform. As an example, it prevents individual states with seaports from setting their own rules, regulations, and fees.

Congress also deals with collection of tariffs on imported goods, protection from importation of diseased foods or other products, and prevention of exportation of materials that are necessary for production of goods within the United States (as in times of war).

We the people give Congress complete control over foreign commerce.

The benefit to we the people is:
• Government revenue and protection of home industries
• Safeguards to health
• Regulation of immigration
• Operation of seaports and airports
• Uniform regulation of international trade

The most controversial and often-discussed part of the clause is “to regulate commerce…and among the several States…” This is the regulation of interstate commerce; it goes hand-in-hand with Clause 1 of Section 8, the Spending (Tax and Spend) Clause. These powers have enabled our country to make the changes necessary to go from an agricultural nation to a large industrial nation. The powers enable the Congress to address problems on a uniform, national level.

commons.wikimedia.org

According to the Findlay’s in Your Rugged Constitution, the regulation of interstate commerce includes:
• All things that move among the states, including goods, persons, and words.
• The modes of transportation including railroads, airplanes, ships, express companies, and the waterways and airspace.

Interstate commerce refers to movement from state to state or through a state to get to another state. It also includes products that are made or mined in one state for use in another state. An example of this would be mining iron ore in Wisconsin for use in a steel mill in Illinois.

http://www.expediterworld.com

Interstate commerce law also restricts the states in that Congress may challenge laws or taxes established by a state unconstitutional in the Courts if they interfere with interstate commerce or regulation of commerce.

The third part of the clause “to regulate commerce…with the Indian tribes;” gives the federal government the power to communicate with and oversee the activities of Indian Tribes. This allows for uniform treatment via the federal government vs. potential inconsistency of laws between the states.

We the people give Congress the authority to regulate interstate commerce and supervise trade with Indian Tribes.

The benefit to we the people is:
• Free flow of goods among the states without tariffs
• Maintenance and supervision of transportation by water, land, and air
• Prevention of the movement of harmful goods into the country
• Protection of Indians from exploitation

This post discusses the way the Commerce Clause was viewed in our country before the 1930’s. After that time, the Courts allowed the congress to expand the power of the Commerce Clause many times. Most recently, this concern was addressed in the Supreme Court decision on the Affordable Care Act. In writing about this decision, Chief Justice Roberts shows how he managed to open the way for a push-back of the broad-reaching Congressional power via the Commerce Clause. In my next post, I will discuss some aspects of the historic changes to the Congressional power of regulating commerce over the last 80 or so years.

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

Webster’s Dictionary

US Constitution

Power of Congress to Tax

“ Government is the peoples’ business, and every man, woman, and child becomes a shareholder with the first penny of tax paid.”

Ronald Reagan, Address to the NYC Partnership Association, January 14, 1982

“*The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the debts and provide for the common Defense and general welfare of the United States;**but all Duties, Imposts and Excises shall be uniform throughout the United States.” Article 1, Section 8, Clause 1 US Constitution

The power of Congress to levy direct taxes is described in Article 1, Section 2, Clause 3. This is discussed in my post, “The Great Compromise” from February 27, 2013. The clause above generally deals with the process of indirect taxation.

* Spending Clause

This clause is labeled the “Spending Clause”. The taxing power of Congress represented in this clause is known as indirect tax. Duties are defined as a tax on goods imported into a country. Impost is to levy a tax as a charge or penalty. Excises are an internal tax levied on the manufacture, sale, or consumption of a commodity or any of various taxes on privileges often assessed in the form of a license or fee. The producers of goods and services will pass these charges to the consumer. This makes the tax indirect to the people.

According to this clause, the Congress may only levy these kinds of taxes to pay the debts and provide for the common defense and general welfare. The debts may be monies borrowed from other countries or other groups. Common defense would include the financial support of the military and groups such as National Guard. The Congress or the Courts have never strictly defined the general welfare.

Initially, the Congress and Executive branches were careful about spending money for the general welfare. They defined spending for the general welfare as something that would benefit all the States. An example might be that money would be allocated for building a lighthouse and maintaining a harbor where goods would be imported and exported to benefit all people in all states. Something that Congress might not fund would be building a recreation center in a local community. This action would not benefit all.

Over the years, this clause has come to mean whatever the Congress wants it to mean. Thus we have funding for some very unusual projects over the years. The spending is based on the will of the Congress. The will to spend (other people’s money) should be strongly influenced by the input from the constituents of each Congressional District and each State.

** Uniformity Clause

The Uniformity Clause directs that the indirect taxes imposed by Congress must be the same throughout the country. Example would be if there is a tax on vehicles, gasoline, tobacco, or cosmetics, it must be the same throughout the whole country.

An important example of paying taxes:

When they came to Capernaum, those who collected the two-drachma tax came to Peter and said, “Does your teacher not pay the two-drachma tax?”

He said, “Yes.” And when he came into the house, Jesus spoke to him first, saying, “What do you think, Simon? From whom do the kings of the earth collect customs or poll tax, from their sons or from strangers?”

When Peter said, “From strangers,” Jesus said to him, “Then the sons are exempt.”

“However, so that we do not offend them, go to the sea and throw in a hook, and take the first fish that comes up; and when you open its mouth, you will find a shekel. Take that and give it to them for you and Me.”

Matthew 17: 24-28

We the people give Congress the power to collect the money necessary to provide for defense if necessary and to take care of needs at home.

The benefit to we the people is that the federal government is strong enough to do and finance the things authorized by the Constitution.  The taxes levied by the Congress are fair in that the rate is the same across all the States.

References:

Bible, NASV

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

Webster’s Dictionary and Merriam Webster online

Enumerated Powers of Congress

“Government has an inborn tendency to grow. And, left to itself, it will grow beyond the control of the people. Only constant complaint by the people will inhibit its growth.”

Ronald Reagan, Address to the Comstock Club, Sacramento, August 6. 1973

Section 8 of Article 1 of the US Constitution assigns certain functions and powers to the Congress. This Section is commonly known as the Enumeration of Powers. Because this Section gives a list of the enumerated powers, I will cover some of the concepts needed to understand how the power structure works in the Congress. You may want to refer back to this post as we look at all the powers on the enumerated list.

Political power, within the concept of federalism, was divided between the two levels of government. The national government was to have limited and enumerated powers. The powers not given to the national government remained with the states as reserved power. Additionally, the national power was divided between the three branches of government with a system of checks and balances in place.

According to Dr. James McClellan in his book, Liberty, Order, and Justice, the powers of Congress can be classified as:

1. Enumerated or delegated – listed. The word delegated means that some of these were powers assigned by the states to the federal government.

2. Implied – expressed indirectly. This is done with the use of the “Necessary and Proper Clause”, which is also in Section 8. I will discuss it in a later post. This clause expands the enumerated powers of Congress. An example would be since Congress has the power to regulate interstate commerce, then it could make a law regulating shipping of materials from one state to another.

3. Prohibited – forbidden by authority

4. Inherited – powers inherited from the British Parliament and earlier state constitutions. (As in Article 1, Section 5, which is modeled after British Parliament with some important changes)

Following along with Dr. McClellan, the powers can be further divided into exclusive and concurrent. Exclusive means belonging only to the Congress (the power to declare war). Concurrent powers are powers shared with the Executive Branch or with the States. (Congress shares with the President the power to make war. It shares income tax power with the States.)

Alexander Hamilton, James Madison, John Jay – authors of the Federalist Papers

James Madison strongly believed in the importance of reserving as much power as possible to the States and to the people (we the people). Writing as Publius in Federalist 45, he writes:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former (federal 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, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Overall, in Article 1, Section 8, we the people empower Congress with certain specified powers so that they can govern effectually.

The benefit to we the people is that we have a Congress strong enough to make decisions and govern, while at the same time limiting the powers of Congress by reserving numerous powers to the States and to the people.

In the next post, I will discuss Article 1, Section 8, beginning with Clause 1 to point out the benefits of the first principles in your life.

God bless you!

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

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

Skousen, W. Cleon. The 5000 Year Leap. National Center for Constitutional Studies, 2006