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
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.
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.
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.
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.
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.
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.
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?
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:
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.
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.
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