Article I, Section 1: All Legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Article I establishes the Legislative Branch of the federal government. Article I, Section 1 of the U.S. Constitution establishes the two parts of Congress, and grants all legislative powers to the two Houses of the Congress of the United States. When studying the language used in Article I, Section 1, the original intent by the Founding Fathers becomes clear.
The first word in the first section of Article I is the word "all." The definition of all is "the whole of a particular thing."
The next words in Article I, Section 1 are legislative powers. Legislative powers are the ability to make law, modify law, repeal law, and anything else that has to do with affecting law.
The next word in the clause is "herein." The primary definition of herein is "here in this document."
After herein is the word granted. Granted is defined as "to give," "to allow," or more specifically "to legally transfer." If powers are granted, then there must be a "grantor," as well as a grantee. As we learned in our discussion regarding The Preamble, the "grantor" of the authorities enumerated in the Constitution is the States.
"Shall be" is definitive. The Constitution in its first clause reads, "All legislative powers herein granted shall be. . .," shall be meaning "it is," or "it will be."
"Vested" is much like "granted." Vested is a legal transfer of something, or in this case, an allowance to have legislative powers at the federal level granted to Congress.
The Congress of the United States is the legislative branch of the federal government, and this clause indicates that not only will the Congress be granted all legislative powers given to the federal government, but that the branch of government consists of two houses; a Senate and House of Representatives.
All legislative powers, according to this clause, are granted to the Congress by the States for the purpose of making law, modifying law, or repealing law. The powers are herein granted, which means that the laws must fall within the authorities granted by the text of the U.S. Constitution. In other words, laws made must remain consistent with the "powers herein granted."
Based on language used in the first clause of the United States Constitution, when members of the judiciary legislates from the bench, or the President issues an executive order to modify a law, such action is unconstitutional. After all, "all legislative powers" were granted to the Congress, not to the judicial branch, or the executive branch.
Since all legislative powers belong to the Congress, that means any regulations by federal departments that are not in line with laws made by the Congress that are in line with the authorities granted by the Constitution are unconstitutional as well. All legislative powers belong to the Congress, therefore any "legislative actions" by regulatory agencies, which are a part of the executive branch, are not in line with the original intent of the Constitution.
Powers the federal government has were "granted" by the States. "We The People of the United States" granted those powers to the federal government through the Constitution. Therefore, if the federal government acts in a manner that is not consistent with the contract between the States and the U.S. Government, the States have the option to ignore those unconstitutional actions by the federal government. This action of ignoring unconstitutional law is the States' way of being the final arbiters of the Constitution. The term for this kind of action by a State is nullification. Thomas Jefferson, in his draft of the Kentucky Resolutions, explained that any unconstitutional law is null and void, and as an illegal law, the States have the right to nullify it.
The concept that only Congress has legislative powers, only the executive branch has executive powers, and the judicial branch only has judicial powers, as described in the first sentence of each of the first three articles of the Constitution, is called Separation of Powers. The purpose of this philosophy is to disallow different branches from abusing the powers not granted to that branch, as well as to protect against collusion.
The Separation of Powers also exists between the States, and the federal government. Most authorities granted to the federal government are powers the States did not reserve to themselves. Most authorities retained by the States are not authorized to be administered to by the federal government. There are a few authorities that are concurrent, meaning that both the federal government, and the States, have some authority over the issue. One issue that is concurrent is immigration, which will be addressed later in this book. Sole authority over a particular power is called Exclusive Powers.
House of Representatives
Article I, Section 2 establishes, and defines, the House of Representatives. The members of the House of Representatives are divided among the States proportionally. As it is today, the House of Representatives was the voice of the people in the federal government. Each Representative is chosen to serve for two years, which means every two years every Representative is up for re-election, if they choose to run.
The eligibility of a Representative as explained by Article I, Section 2 requires that the candidate must be at least twenty-five years of age, and been a citizen of the United States for at least seven years. The age is lower than for Senators. Representatives were not expected to be as politically savvy as the Senators, and tended to have less experience. The age requirement simply reflected that. Political knowledge and experience tends to come with age.
Divided allegiance was a serious concern to the Founding Fathers. The requirement that Representatives have been citizens of the United States for at least seven years reflects that concern. Seven years, for a Representative of the people, was assumed to have been long enough for the Representative to have thrown off any allegiances to other nations.
The third clause of Article I, Section 2, includes the 3/5s clause, which was changed by the 14th Amendment following the American Civil War.
The Southern States used slaves for their agricultural economies. The southern states were needed to ratify the new constitution. As a condition for ratifying the Constitution, the southern states demanded that the slaves be counted as one whole person each. The idea was that if the slaves were counted as whole persons, the apportionment would tip the scales in their favor through increased representation in the new United States House of Representatives. White populations in the southern states were lower in number when compared to the northern states, due to the rural nature of the Slave States to the south.
The Northern States, under the heavy influence of merchants, political elitists, and a group of abolitionists, wanted the slaves counted as "zero" in order to reduce the number of representatives the southern states would receive, which would give the majority to the northern states, thus giving the north more legislative power. With this additional voting power in the House of Representatives, the northern states sought to have greater influence on the federal government through legislation. The plan was to use their legislative power to tyrannically force the southern states into submission, and to eventually abandon slavery.
In the interest of compromise, to convince the southern states to ratify the constitution, while giving the northern states the satisfaction that the southern states did not get exactly what they wanted, the decision was made that slaves would be counted as 3/5 of a whole person for the sake of apportionment. In other words, it was not a declaration that they believed blacks to be less than a person, but simply to affect the census in such a way that too much power through apportionment would not be given to either The North or The South, while also ensuring that the Constitution got ratified.
G.R. Mobley, author of We the People, Whose Constitution Is It Anyway?, believes the Founding Fathers missed a great opportunity to abolish slavery. He supports the idea that the 3/5s Clause was an error in judgment by the Founders, and that the authors of the Constitution should have only allowed those States that rejected slavery to be members of the union under the Constitution. By failing to ratify the Constitution the southern slave states would then have been on their own as a separate union. Pressure from the Spanish in Florida, and the threat of invasion by Spanish forces, would have then encouraged the slave states to abolish slavery, so that they may rejoin the union, and enjoy the strength of the union of all thirteen States.
Historically, it is impossible to know if that is exactly how it would have played out. Regardless of the opportunity, the Founders largely believed they had to compromise to ensure every State remained a member of the union, and ensure that they would receive the required nine ratifications of States in order to put the new federal government into motion.
Article I, Section 2, Clause 3, in addition to containing the 3/5s Clause, also establishes the census. The census is a required a head count to be taken once every ten years in order to determine the enumeration for establishing the number of Representatives each State shall receive. The clause also indicates that the number of Representatives shall not exceed one for every thirty thousand. This means there cannot be more than one Representative for a district of thirty thousand. However, it does not indicate there must be one Representative per thirty thousand. If that was the case, we would have thousands of Representatives.
Article I, Section 2, Clause 4 states that whenever vacancies happen in the House of Representatives, it is the duty of the Executive Authority to issue Writs of Election to fill such vacancies. What this means is that the Governors of the States have the duty to ensure there is a special election to fill any vacancies that may happen in the House of Representatives.
The House of Representatives chooses for itself its own Speaker of the House, and other officers.
According to Article I, Section 2, Clause 5, the House of Representatives has the sole power of impeachment. To impeach is to charge with misconduct. The formal process of impeachment may lead to removal of an official accused of unlawful activity or other offenses deemed to be impeachable offenses. Impeachment is not defined as removal from office, though removal from office is often the result of impeachment proceedings. In history, two presidents have been impeached, but neither were removed from office. The presidents who faced impeachment were Andrew Johnson (serving as President of the United States from 1865 to 1869), and William Jefferson Clinton (1993-2001). President Richard Nixon resigned in 1974 before impeachment proceedings began.
The United States Senate
Article I, Section 3 established, and defines, the United States Senate. The representation of the States in the U.S. Senate is equal, two per State. The Senators serve for six years, which means every two years an election is held for one-third of the Senate seats. The required minimum age of a Senator is thirty years, five years older than that of a Representative. The increased age requirement for Senators reveals the importance of longer life and political experience, as considered by the Founding Fathers. Allegiance to the United States also remained important to the framers in the U.S. Senate, requiring that Senators need to be nine years a citizen of the United States, rather than the seven years as required of Representatives.
Article I, Section 3 originally required that Senators were chosen by the legislatures of the States, rather than voted into office directly by the voters. The appointment of Senators by their State legislatures changed to the vote of the people in 1913 with the ratification of the 17th Amendment. By the State legislatures appointing the Senators, it made the Senate the voice of the States, while the House of Representatives was the voice of the people. By the Houses of Congress being different, it created a natural check and balance, which did not allow the representation of the people to accomplish anything without approval of the voice of the States, and vice versa.
Article I, Section 3, Clause 4 establishes the Vice President as the President of the Senate. The Vice President, though a member of the executive branch, is also connected to the legislative branch. The Vice President may preside over the sessions of the U.S. Senate, and even participate in the debates, but in the end, the Vice President has no vote in the U.S. Senate, except as the tie-breaking vote.
During the early days of our nation the Vice President attended a large number of sessions of the Senate. He served as the voice of the executive branch in the Senate, ensuring the States' representation in Congress had the opportunity to be exposed to the executive branch's opinions regarding the issues that concerned the States, and the union as a whole.
As with the House of Representatives, the Senate chooses its own officers. One of those officers is the President pro tempore, which is the President of the Senate when the Vice President is not present.
The House of Representatives has the sole power of impeachment. Article I, Section 3, Clause 6 gives the U.S. Senate the authority to try all impeachments. No conviction can be reached unless two-thirds of the U.S. Senate membership is present. Impeachment cannot extend further than the removal of the impeached from office, and the disqualification to hold any office in the future. However, a legal case can still be brought against the convicted from other sources, according to the law. Since the U.S. Senators were originally appointed by the legislatures of the individual States, this means that impeachment charges could be brought by the people (House of Representatives), but it took the States (Senate) to hear the case, and make the final determination after all evidence was provided. During impeachment hearings, the Chief Justice presides over the hearing, as provided by Article I, Section 3.
The 17th Amendment changed the dynamics of our governmental system. Note that many functions by the executive branch are subject to the advise and consent of the Senate. The Senate ratifies treaties, holds hearings for any appointments the executive branch nominates, and the Senate holds the sole power for holding hearings on impeachments. This is because actions by the federal government are subject to approval by the States. The States granted the federal government its powers in the first place.
The House of Representatives, as the voice of the people, and the Senate, as the voice of the States, and the natural check and balance that is the result of that relationship between those two Houses of Congress, also enables both Houses together to be a valuable check against the executive branch. One of the emanations of that correlation is the ability of Congress to override a veto with a 2/3 vote. The authority to override vetoes was established to enable the People, and the States, when they are in full agreement regarding a proposed bill, to be able to ensure a law is put into place, and to constrain the executive together through the power of combined vote.
Elections and Assembly of Congress
Article I, Section 4 begins, "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." This clause establishes that each State may have its own methods for electing members of the Congress. The same applies, as determined in Article II, to presidential elections. If there is a discrepancy, or a question regarding the acceptance of ballots, it is not the job of the courts to make final determination. Article I, Section 4 gives that authority to the State legislatures.
The same clause adds, after giving the State legislatures authority over federal elections, that "Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators."
Congress, as discussed earlier, is bicameral. The two Houses of Congress are the House of Representatives, and the United States Senate. The House of Representatives, at the time of the writing of the Constitution, was designed to be as it is now, the voice of the people. Representatives have always been elected by a direct vote. The United States Senate was the voice of the States, appointed by the State legislatures. The appointment of the Senators by representatives of the people is an example of an indirect vote.
As the representation of the people, and the States, Congress was not seen as the greatest potential danger in the federal government. Congress was the voice of the people and the States in the federal government; the eyes of the parents to ensure the central government did not grow beyond the authorities granted to it. With Congress representing the oversight by the people, and the States, the oversight powers given to the federal legislature often led to other authorities that allowed Congress to act as a check and balance against potentially dangerous government activity. Giving Congress oversight authorities was a way to ensure that Congress participated in the concept of a government "by the consent of the governed."
Though elections were established with the State legislatures prescribing the times, places and manner of holding elections, as a check and balance against that authority, Congress may pass laws to "make or alter such regulations."
At the end of the clause giving Congress the authority to act as an oversight regarding the manner in which elections are held, a qualifier is present, expressing, "except as to the Places of chusing Senators."
A majority of delegates at the Federal Convention in 1787, by the conclusion of the assembly, were strong supporters of the sovereignty of the States, and the parental nature of the States in relation to the newly formed federal government, and the duty of the States as the final arbiters of the United States Constitution to ensure the new government functioned within the limitations granted to it. A part of that function by the States included the very important fact that the States had a voice in Congress with appointed U.S. Senators. The framers did not want that authority to be tinkered with, so they remind future generations at the end of this clause that though Congress has lawmaking authorities, and oversight authorities, manipulating the dynamics of government where the people, and the States, have a voice in the United States Congress is something not to be fiddled with. A similar advisement also appears at the end of Article V., "and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
Oversight powers by the States were seen by the framers as being a right of the States, and as with natural rights of the people, a right is not something that should be able to be taken, but if the holder of the right wishes to give it away, no law can prevent such a foolish action.
The second paragraph of Article I, Section 4 reads, "The Congress shall assemble at least once in every Year." The first thought regarding this clause by the typical reader may be, "Of course. How can they get anything done if Congress isn't assembling?"
Another question may be, "Why did the framers feel it to be necessary to insert this clause into the Constitution?"
During the convention in 1787, there were some who felt this clause was "overburdensome." Government was not supposed to dominate their everyday lives. The members of Congress were not professional politicians, nor did they care to be. They had businesses to run, and lives to live. Surely, the attitude of many of the Founding Fathers was, there is not enough business to compel Congress to meet every single year!
Those who supported the concept of an annual meeting reminded the others that Congress was the check the people and the States had available to them in the federal government. It was the duty of Congress to serve as a check against the President, and the federal judiciary. To be an effective check, Congress must meet at least once per year. The clause, it was argued, was for the benefit of the people.
In present day politics, the opposite seems to be the norm. Government is viewed as being broken if they do not act on an endless and constant flow of issues, committees, and crises. Politicians view their position as their job, rather than a service they are providing.
Originally, the required meeting day was the first Monday in December. That was later changed to noon on the third day of January by the 20th Amendment.
Article I, Section 5 requires Congress to have a minimum number of members present in order to do business. That majority constitutes a quorum, and if the Congress deems it necessary, the present members may set fines for members who do not show up. The Houses of Congress may remain in session, during which no formal business is conducted because the House does not have a quorum, so as to prevent executive actions that may be carried out during recess. This kind of session is called a pro forma session.
In Article II, Section 2, the President is given the authority to make recess appointments, when Congress is not in session. Normally, the United States Senate has advise and consent authority over appointments, which means that appointments of personnel to fill vacancies are possible for the President to grant, but such appointments requires the approval of the United States Senate (voice of the States). If the Senate is not in session, and an appointment is necessary, the President may make appointments, but the terms of those appointments only last to the end of the Senate's next session. If the Senate is in a pro-forma session, the President may not make any appointments. With Congress only in session when there is work to be done, and the Founders believing that would likely only be once a year, the ability of the President to make appointments when Congress is not in session was a valuable, and necessary, tool. In today's political environment, it seems like Congress is always in session, so recess appointments are not as common.
In early January of 2012, President Barack Obama used a recess appointment to name Richard Cordray the new Director of the Consumer Financial Protection Bureau (CFPB). The CFPB is a powerful bureaucracy created by the 2010 Dodd-Frank financial overhaul legislation. However, even though most of the members of Congress were on vacation, the United States Senate was still in session. President Obama's definition of recess, it turned out, was broader than the Constitution's definition. In reality, the U.S. Senate was in pro-forma session. John Berlau, Director of CEI's Center for Investors and Entrepreneurs, called the nomination of former Ohio Attorney General Richard Cordray "very troubling," criticizing both Obama's controversial use of a recess appointment, and the selection of Cordray itself. Berlau later asked, "What's next, appointing nominees when the Senate takes a bathroom break?"
Article I, Section 5 also allows each House of Congress to determine its own rules, keep a journal to record proceedings and votes, and that neither house may adjourn without the permission of the other. Section 5 also establishes that if a member of a house does not follow the established rules, the house may punish its members for disorderly behavior, and by a two thirds vote may actually expel a member from Congress.
The establishment of rules, holding a hearing in regards to the breaking of those rules, and punishing a member for his behavior, as set forth by Article I, Section 5, was used when Charles Rangel broke the rules of the House of Representatives. He faced a panel for his actions, and was punished by censure in December of 2010. He later sued, spending about a third of his 2014 campaign cash on legal bills in a failed bid to overturn his fall from congressional grace. On December 11, 2013, a federal judge in Washington dismissed the lawsuit, filed by Rangel in the previous April, to get the censure overturned.
The mandate to keep a journal to record proceedings and votes was included in this section because the Founders wanted government to be transparent, accessible, and accountable to the people. Deals behind closed doors were not supposed to be a part of our political system.
When President George Washington took office, he refused to accept the constitutionally allowed compensation for holding the office. He viewed his office as being a privilege, and an opportunity to once again serve the country he loved. During the Constitutional Convention, Benjamin Franklin considered proposing that elected government officials not be paid for their service. By the end of the debate, it was decided that government representatives should receive fixed stipends by which they may be compensated for the devotion of their time to public service. It was also determined, however, that the compensation should not be so high that it would become the motive for seeking office.
Article I, Section 6 of the Constitution addresses compensation, and the rules regarding such. Section 6 also establishes that members of Congress may not be detained while traveling to and from Congress, and that they cannot hold any other office in government while in Congress.
Protection from arrest while traveling to and from Congress was not only a privilege based on those enjoyed by their counterparts in the British Parliament, but also a protection from political enemies who may wish to keep certain members of Congress from voting.
This section also indicates that no member of Congress shall be appointed to a later office if while in Congress the office was created, or a raise in pay was enacted for that office.
To explain this clause, let's visit a recent violation of it during the Obama administration.
After Barack Obama won the 2008 Presidential Election, he announced that Hillary Clinton would be his new Secretary of State. The position of Secretary of State received a pay raise while Hillary Clinton was a member of the United States Senate. Article I, Section 6 states that "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall be been created, or the Emoluments whereof shall have been encreased during such time." Since Clinton was a Senator at the time the position of Secretary of State was given a raise, technically she was not eligible for the position to which she was appointed. To resolve this problem, and still allow Mrs. Clinton to accept the position, the Democrats applied the Saxbe Fix, meaning they undid the raise, and Hillary Clinton received the compensation that was in place before the vote she participated in while in the Senate. The Saxbe Fix, or a Salary rollback, is an unconstitutional action. The clause in the Constitution is clear: "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time."
The Saxbe Fix, or the rollback of the salary, does not change the fact that the emoluments increased during the time Hillary Clinton was in the U.S. Senate.
As a tool, the Saxbe fix was nothing new. The salary rollback in the case of a violation of Article I, Section 6, a mechanism by which the President of the United States can avoid restrictions by the United States Constitution which prohibits the President from appointing a current or former member of Congress to a position that was created, or to an office position for which the pay and/or benefits were increased, during the term for which that member was elected until the term has expired, was first used in 1909. The "Saxbe" name was applied to the political maneuver later in history. The Saxbe Fix is named for William Saxbe, a Senator appointed Attorney General by President Richard Nixon in 1973.
Adjourn: Suspend proceedings to a later time and/or place.
Censure: Procedure for publicly reprimanding a public official for inappropriate behavior. There are normally no legal consequences. Censure is not mentioned in the Constitution, but is a procedure devised by the legislature as a tool for formal condemnation of a member of the congressional body.
Congress of the United States: The legislative branch of the federal government which consists of two houses; a Senate and House of Representatives. The Congress is the only part of the federal government granted the authority of legislative powers.
Granted: To confer, give, or bestow. A gift of legal rights or privileges, or a recognition of asserted rights, as in treaty. To legally transfer.
Impeachment: To charge with misconduct. Formal process that may lead to removal of an official accused of unlawful activity; impeachment does not mean the removal from office, though removal from office is often the result of impeachment proceedings.
Legislative Powers: The ability to make law, modify law, repeal law, and anything else that has to do with affecting law.
Nullification: State power to ignore unconstitutional federal law.
President pro tempore: Second highest ranking official of the United States Senate. Vice President is President of the Senate and the highest-ranking official of the Senate despite not being a member of the body. During the Vice President's absence, the president pro tempore presides over its sessions or appoints another senator to do so. The president pro tempore is elected by the Senate and is customarily the most senior senator in the majority party.
Pro Forma Session: A session in either house of the United States Congress at which no formal business is expected to be conducted, so as to fulfill the obligation "that neither chamber can adjourn for more than three days without the consent of the other." Pro forma sessions are also used to prevent the President from pocket-vetoing bills, calling the Congress into a special session, and to prevent the President from making recess appointments.
Quorum: Minimum number of members of an assembly necessary to conduct the business of that group.
Saxby Fix: Salary rollback. A mechanism by which the President of the United States can avoid restrictions by the United States Constitution which prohibits the President from appointing a current or former member of Congress to a position that was created, or to an office position for which the pay and/or benefits were increased, during the term for which that member was elected until the term has expired. First used in 1909, the Saxbe Fix is named for William Saxbe, a Senator appointed to Attorney General by Nixon in 1973.
Questions for Discussion:
1. If only Congress can make law, then why do some politicians believe that Executive Orders can modify law, or that regulatory agencies can create new regulations to enforce laws that were never passed by Congress?
2. The word "granted" reminds us that all powers once belonged to the States, and some of those authorities were "granted" to the federal government for the purpose of carrying out the tasks necessary for the protection, preservation, and promotion of the union. If the federal government was created by the States, then how can statists justify their belief that all federal laws trump all State laws?
3. Why do you think the Congress has two legislative houses?
4. Why do you think representatives are only elected for two years?
5. Why is it significant that only the House can originate bills for raising revenue?
6. Why is the power of impeachment belonging to the House so important?
7. As President of the Senate, what kind of role should the Vice President play in the day to day activities of the United States Senate?
8. Why do you think the House of Representatives has the sole power of impeachment, but the Senate has the task of hearing the case?
9. How are the dynamics of our governmental system different in relation to how the Senators are appointed, or voted for?
10. How was the Senate expected to check the House of Representatives, and work together with the House to check the Executive and Judiciary?
11. Why do you think the authority for prescribing the times, places, and manner of holding elections was given to the State Legislatures?
12. Why was Congress given the allowance to pass laws that may make or alter such regulations?
13. Why was the federal government prohibited from influencing the places for choosing Senators?
14. To conduct business, the houses of Congress need a quorum. If they do not have a majority, they may remain in session through a rule established by Congress called pro forma. What advantages does pro forma give the houses of Congress when it comes as serving as a check against the executive branch?
15. Why do you think neither house can adjourn without the permission of the other?
16. The houses of Congress establish their own rules of procedure. If a member breaks any of these rules, Congress also has the authority to punish the rule breaker. One type of punishment is called censure. How is censure an adequate punishment?
17. How has the concept of transparency changed over the last two hundred years?
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
Larry Schweikart and Michael Allen, A Patriot's History of the United States; New York: Sentinel (2004).
As covered when we studied Article I, Section 1, all legislative powers belong to the Legislative Branch. According to Article I, Section 7, Clause 2, all bills must be approved by both the House of Representatives and the U.S. Senate before they can be presented to the President for signature. Article I, Section 7, Clause 1 indicates that all bills for raising revenue shall originate in the House of Representatives.
The structure for making law was established by the Founding Fathers in the way that it was in order to ensure that all parts of the system had a voice in the approval, or disapproval, of the law. The people through their representatives in the House of Representatives voted their approval or disapproval of the bill, the States did the same through their voice in the United States Senate, and the federal government's voice through the executive was the final approval. If the executive did not like the proposed law, he could veto it. However, all did not stop there. If Congress felt strongly enough about the bill, and had enough votes, they could override the veto with two-thirds vote in each House and make the bill a law without the signature of approval from the President.
In 1913, the 17th Amendment changed the process in which United States Senators are chosen. Originally, the State Legislatures appointed the U.S. Senators, making the U.S. Senate quite literally the voice of the States. The Senators at that time voted with the interests of the States, and more specifically with the intent of protecting their State's sovereignty, in mind. With the House of Representatives acting as the voice of the people, and the Senate acting as the voice of the States, the dynamics of making law was quite different from what it is today.
The process of making a law as originally intended ensured that the people, the States, and the federal government, all each had the opportunity to approve or disapprove the piece of legislation. If either the people or the States did not like the bill, its journey to become a law stopped. If the federal government, via the President, felt the bill was unconstitutional, or that its passage is not in the best interest of the nation, he could veto the bill. The veto by the President in turn could be overturned with a two thirds vote from each house of Congress. The reason for this system was for the purpose of checks and balances, and to keep the States involved in monitoring the federal government through advise and consent authorities. This gave the people through the House of Representatives, and the States through the U.S. Senate, the ability to check each other, and the ability of them together to check the federal government. The people and the States together, if in agreement, served as a united check against the federal government, or more specifically in the case of making law, the executive branch.
We The People hold original authority in the process of making law. The members of the United States House of Representatives and U.S. Senate are voted into office by direct election of the people. All of the officials involved with appointing or electing members of the branches of the federal government (as well as the U.S. Senate prior to 1913) were also originally voted into office by the general population. Our original authority also reaches even farther back than the descriptions above, because it was the people, as the sovereign states of the union, who originally held all of the authorities prior to the writing and ratification of the U.S. Constitution. Under British rule, original authority belonged to the monarchy, as per Royal Prerogative; but in the United States, original authority belonged to the people.
By Article I, Section 7, Clause 1 establishing that all bills for raising revenue originate in the House of Representatives, the Constitution grants to the voice of the people the power to fund, or defund, any function of government affected by legislative action. The power of the purse-strings gives the House of Representatives the ultimate check against the other parts of government, and ultimately gives the House of Representatives a significant amount of power. Should the House of Representatives, for example, disapprove of a military action being carried out by the Commander in Chief, the action can be stopped by the House of Representatives simply defunding the military operation by not including funding for that action in a budget proposal. Refusal to accept the proposal by the Senate, or the Executive, places at risk the funding for other parts of government as well. The Senate, though unable to originate bills raising revenue, may propose amendments to be added to such a bill that originated in the House of Representatives, but no bill raising revenue may originate in the Senate. Upon approval by the Senate, if the Senate made changes, the bill would still need to go back to the House of Representatives for approval. The approval by both houses of Congress must be for an identical bill.
If the President approves the bill, and signs it after it has been approved with a majority vote in each of the two houses of Congress, the bill becomes law. If the President does not approve of the bill, he may refuse to sign it, or veto the bill, and return it with a written explanation of his disapproval.
Should the Houses of the United States Congress determine with a two-thirds vote in each house to reconsider the bill, the bill will still become law despite the executive objection.
All votes in the two houses of Congress shall be determined by yeas and nays, which will be entered into the respective house's journal. The journal entry will include the names and votes of the members voting for, or against, the bill.
If the President refuses to sign the bill presented to him, but does not return the bill with his written objection within ten days (excluding Sundays) the bill becomes law as if the President signed it. The exception to this clause is if Congress does anything to prevent the bill's return, such as through their adjournment. In that case, the bill remains to be only a bill, and only becomes law should any of the afore mentioned processes be met.
Original Authority: Principal agent holding legal authority; initial power to make or enforce laws; the root authority in government.
Veto: The power of a chief executive to reject a bill passed by the legislature and thus prevent or delay its enactment into law.
Questions for Discussion:
1. Why did the Founding Fathers decide to give the power of the purse to the House of Representatives?
2. How did the Senators being appointed by the State Legislatures enable State involvement in the federal government?
3. If the people have original authority, how does that affect the relationship between the people through their States, and the Federal Government?
Joseph Andrews, A Guide for Learning and Teaching The Declaration of Independence and The U.S. Constitution - Learning from the Original Texts Using Classical Learning Methods of the Founders; San Marcos: The Center for Teaching the Constitution (2010).
The powers granted to the federal government in relation to legislative powers are listed in Article I, Section 8. These authorities are also known as "Express Powers."
Implied Powers is a concept invented by Alexander Hamilton while he served as treasury secretary in 1791. He wrote in a report titled, "Opinion on the Constitutionality of the Bank of the United States" that "there are implied, as well as express powers, in the Constitution, and that the former are as effectually delegated as the latter. Implied powers are to be considered as delegated to the federal government equally with the express ones."
Hamilton, in his report, went on to argue that a nationalized bank was one of these implied powers. Hamilton's argument stated that his power to create a nationalized bank was implied as "necessary and proper" for the federal government to carry out its enumerated powers, such as borrowing money, regulating currency, and providing for the general welfare of the country.
Thomas Jefferson disagreed, arguing that the express powers delegated to the federal government by Article I, Section 8 of the Constitution were expressly stated because they were the only powers granted to the federal government by the sovereign States when they ratified the Constitution. New authorities could only be granted by the amendment process, which includes the requirement of ratification by three-quarters of the States.
The Concept of Implied Powers remained, and the statists of history have used Implied Powers to rewrite the Constitution through regulatory actions, and liberal judicial activism.
From the emergence of Implied Powers came the theory that the Constitution is a living document that can be modified at will through interpretation and the use of Implied Law. Hamilton's concept of Implied Powers laid the groundwork for generations of lawyers and judges using the courts, rather than the amendment process, to alter the Constitution, and render the limiting principals powerless. The concept of Implied Powers is one of the concepts that have fed the false idea that the courts "interpret" the Constitution.
Alexander Hamilton also argued that there were "resulting powers" as well, which are powers that exist as a result of any action the government takes. These "resulting powers" are de facto constitutional by virtue of the fact that the action by the federal government occurred in the first place.
With the use of the concepts of Implied Powers and resulting powers, Hamilton believed the central government had unlimited powers to act as any member of the federal government deemed necessary.
General Welfare Clause
"If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions." --James Madison
The General Welfare Clause is one of the most misunderstood clauses in the U.S. Constitution - and it was not even supposed to be a clause.
Article I, Section 8, Clause 1 includes "General Welfare" not as an authority to the federal government, but as a description of the Republic should the laws of the land be made in accordance with the authorities granted by the Constitution.
If we go back to the Preamble, we read that one of the reasons the Founding Fathers created this new government with the writing of the Constitution was to "insure domestic Tranquility." One must ask, "Why was there a need for domestic tranquility?"
The States were much like siblings. The States fought over just about everything. They argued over commerce, borders, legal jurisdictions, currency, weights and measures, communication, religion, and a number of other issues. Yet, despite their disagreements, when it came to the American Revolution, they united against a common enemy. After the war, the quarrels resumed. The fighting between the States became such a problem that many worried it would tear apart the union. One of the many reasons for the need of a new government, as provided by the U.S. Constitution, was so that the central government would have enough authorities to act as a mediator between the States.
Acting as a referee in matters that caused disputes between the States would help the federal government provide for the General Welfare of the republic.
Another reason for the writing of the new constitution was to give the federal government enough power to defend the union from invasion and domestic insurrection. Under the Articles of Confederation, the central government was unable to provide for the common defense because the government did not have the authority, nor the financial means, to field a military. With the ability to field a fighting force, the federal government would be able to protect the States from foreign invasion, while also keeping internal conflict at bay as well.
By providing for the common defense, the federal government would also be ensuring the General Welfare of the Republic.
In other words, if the federal government was doing what it was supposed to do, as a mediator between the States, and as a protector of the States by providing for the common defense, the States would enjoy a general welfare of the republic. The Founding Fathers wanted to make sure that squabbles, internal conflict, or foreign intrusion did not place the welfare of the union in jeopardy.
General Welfare is an adjective, not an authority.
The General Welfare of the republic was the goal, which would be achieved if the federal government abided by the limiting principles of the U.S. Constitution.
Taxes and Debt
Article I, Section 8 grants Congress the power to lay and collect Taxes, Duties, Imposts, and Excises.
The authority to tax was for the express purpose of protecting, preserving, and promoting the union. The federal government could tax the States only if the taxes were uniform throughout the United States. The federal government could not originally tax the individual citizens directly.
The stated purposes for giving the Congress the power to tax are to "provide for the common Defence and general Welfare of the United States."
The need for the central government to be able to defend the union militarily was one of the initial reasons the Founding Fathers planned the Constitutional Convention at the Annapolis Convention in 1786. Shays' Rebellion proved to the founders that the government under the Articles of Confederation was too weak to defend the union.
Some of the members of the Constitutional Convention were concerned that a military may be used by the federal government against the States, but the reality of the world they lived in was that the union would not survive without the ability to defend itself. It was argued that the independent militias needed to be joined under a single federal army, and for the protection of the trade routes a United States Navy also needed to be established. In order to have a military, however, the federal government would need the power to tax in order to pay for the military it would be afforded.
The second clause of Article I, Section 8 grants the authority to the U.S. Congress to borrow money on the credit of the United States. If the federal government ever found the necessity to enter into military operations on the battlefield, to help pay for the expensive endeavor of warfare, the federal government would need to be able to borrow money for the war effort. Therefore, the States through the new Constitution granted to the federal government the authority to create a national debt. The founders did not recognize any reason other than for war that the United States would need to borrow money. Alexander Hamilton, however, suggested that a continuous national debt was necessary to hold together the union, for if the States all felt they were responsible for the repayment of the deficit, they would be less likely to break away from the union.
Article I, Section 8, Clause 3 grants to the Congress the authority to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.
Remember, the States did not get along too well. Like siblings, they argued over just about everything. The individual States bickered over the borders between the states, turf, and interstate trade. As sovereign entities, the States continually tried to gain the upper hand on the other States in regard to commerce across State lines. Recognizing that the squabbles between the States were actually hindering commerce across State lines, the federal government in this clause was given the authority to do what was necessary to enable the flow of commerce to be more regular.
When you turn on a faucet full blast you are regulating the flow, just as you are regulating the flow when you restrict it by turning the faucet off. Likewise, the federal government was expected to act as a mechanism that ensured that the flow of commerce between the States was more regular.
The 1828 Webster Dictionary defines regulate in its second definition: "To put in good order." Some historians state that regulate in the 18th Century meant "To make regular." The word "restrict" was not used in the 1828 definition until the third and final definition of the word. In today's dictionary "restrict" appears in the first definition of regulate.
Today, the Commerce Clause has been interpreted to mean the opposite of its original intent. The Commerce Clause in today's political atmosphere is used as a means to restrict and heavily control commerce between the States. If one was to adopt the progressive definition of the Commerce Clause, one could then surmise that the Founders wrote this clause because commerce was flowing too easily, and needed to be controlled by the federal government. Such a notion is not only untrue, but outside the normal tendencies of the Founding Fathers. The Founders believed in limiting the powers of the Federal Government, so why would they allow the Federal Government the kind of unlimited powers over interstate commerce as suggested by today's progressive?
The federal government's role according to the Commerce Clause was to act as a referee, or mediator, whenever the flow of commerce was hindered by disagreements between the States, while with foreign nations and the Indian Tribes the federal government was expected to take a more active role.
Article I, Section 8, Clause 4 gives the Congress the authority to establish a uniform rule of Naturalization. What this means is that all naturalization rules must be identical in all States. One State cannot decide to have rules for naturalization that are different than what the federal government has established. This is an example of an "exclusive jurisdiction." However, realize that immigration is not mentioned here. Immigration is a concurrent issue, with authorities held by both federal government and the States.
In Article I, Section 8, Clause 4 the federal government is also given the authority to establish uniform rules on the subject of bankruptcies throughout the United States.
Prior to the ratification of the U.S. Constitution, each State had its own rules on bankruptcy. Citizens would simply cross state lines to start over financially. The clause bringing bankruptcy under federal jurisdiction was for the purpose to stop the abuses, and to establish uniform rules nationwide.
Money, Weights, and Measures
Article I, Section 8, Clause 5 establishes that the duty of coining money belonged to Congress. Note that the Constitution called for coining money, rather than printing federal reserve notes (bills of credit). The coins produced by Congress were expected to be made of metals that reflected the worth of the coins. In other words, the gold in a coin, if taken to a goldsmith, would be worth the same as the value of the coin. Later, the banks realized they could loan on the gold in their vaults backing the currency, leaving less gold as a reserve. They did this by issuing receipts, or bills of credit. When this happened, if there was a bank run, where everyone brought their receipts in to cash it in for gold all at once, the bank would be left in a situation where they did not have enough gold to cover all of the notes.
If one goes back to the Articles of Confederation, it is important to note that under the confederation, there had been no power given to the central government to regulate the value of foreign coin, an omission, which in a great measure would destroy any uniformity in the value of the current coin, since the respective states might, by different regulations, create a different value in each. As a result, the States were prohibited in Article I, Section 10 from coining their own money, thus taking away their ability to manipulate the value of currency as a means of effecting the economies of the other states.
The authority to coin money was given specifically to Congress so that no outside interest could manipulate the value of American money. This included private banks. Nonetheless, we have seen three nationalized banks run by private bankers in the United States issuing the currency. The third is the currently existing Federal Reserve Bank.
Thomas Jefferson was against national banks. Alexander Hamilton created the "Bank of the United States" in 1791 for the purpose of acting as a depository of government funds, issuing paper currency backed by gold and silver, and creating a system of mercantilism in America. The bank's charter lapsed in 1811. The Second Bank of the United States was formed in 1817, and lasted until President Andrew Jackson vetoed the renewal of its charter in 1836. The bank existed for 5 more years as an ordinary bank before going bankrupt in 1841. In a letter to John Taylor in 1816, Thomas Jefferson wrote, "I sincerely believe, with you, that banking establishments are more dangerous than standing armies; and that the principle of spending money to be paid by posterity, under the name of funding, is but swindling futurity on a large scale."
Article I, Section 8, Clause 5 also establishes that Congress shall have the power to fix the Standard of Weights and Measures. Fixing a standard of weights and measures was important for the reason of uniformity, and the ease of commerce. This clause suggests that before the Constitutional Convention the States were able to independently fix their own weights and measures, which not only added confusion to commerce, but enabled the States of use unsavory trading tactics against each other.
Article 1, Section 8, Clause 6 establishes that the U.S. Congress will provide for the punishment of counterfeiting the securities and current coin of the United States. This power would naturally flow, as an incident, from the antecedent powers to borrow money, and regulate the coinage. Indeed, without the ability to provide for the punishment of counterfeiting, the powers of coining money or creating securities would be without any adequate sanction. The word "securities," in this clause, means: a contract that can be assigned a value so that it may be traded, like a "bond."
Post Offices and Roadways
In Article I, Section 8, Clause 7 the Congress is granted the authority to establish post offices and post roads.
As with the other clauses in Article I, Section 8, this clause is designed to promote the Union. In this case, it ensures that communication remains intact. The clause gives the federal government the authority to establish post offices, but nowhere in the Constitution does the federal government have the authority to partially privatize the post office as we have seen in the modern era.
Article I, Section 8, Clause 7 gives the federal government the authority to "establish" post roads, but not create or maintain them. The Constitution does not give the federal government any other authority over roadways. In fact, this is the only reference to roadways to the federal government in the entire Constitution. This clause makes the federal highway and Interstate highway system, as well as the other workings of the federal transportation department, unconstitutional. It was up to the States to create and maintain their roadways. If the States desired to remain connected, and receive their mail, they would keep up their roads.
In 1817, Congress proposed a bill that would provide federal funding for boatways and roadways, claiming it was for the "general welfare" of the nation. President James Madison vetoed the bill, claiming it to be unconstitutional, because the federal government was not given the authority to fund transportation routes.
Patents and Copyrights
Article I, Section 8, Clause 8 authorizes Congress 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.
This clause is the basis for the creation of the U.S. Patent Office, and Copyright Office. Patent and copyright protections already existed in the British Empire, and for the protection of American inventions and writings, the Founding Fathers saw the need to establish such a power under the federal government as well, expecting that by being under federal authority, the rules would be uniform.
Federal Inferior Courts
Article I, Section 8, Clause 9 authorizes Congress to constitute tribunals inferior to the Supreme Court. This means that the legislative branch was tasked with the duty to establish the lower federal courts. However, by enabling Congress to establish new courts whenever necessary, this has given some administrations an opportunity to abuse this power in the hopes of stacking the courts. John Adams was the first example of this abuse, when he appointed many midnight judges in order to help retain federalist power in the courts as Jefferson's Republicans gained the White House, and the majority in Congress. Some may argue that Adams' decision to expand the court was not as sinister as Thomas Jefferson made it out to be, for John Adams had been requesting an expansion of the judiciary for years.
President Franklin D. Roosevelt also sought to "pack" the court with justices favorable to his social policies. His animosity toward the Supreme Court emerged when his New Deal of social and economic reform via government intrusion was struck down as unconstitutional by justices that had been largely appointed by his rival Republicans.
The high court invalidated the Railroad Retirement Act of 1934, a law that had established pensions for railway workers, and the National Industrial Recovery Act of 1933. Roosevelt's anger against the justices for their rulings led him to hold contempt for the conservative-minded court of "Nine Old Men." In January 1936, the court ruled the Agricultural Adjustment Act of 1933 unconstitutional, as well.
In 1937, Roosevelt disclosed to his aides a bill he was going to propose that was designed to reorganize the federal judiciary. The measure called for all federal judges to retire by age 70. If they failed to do so, the president could appoint another judge to serve in tandem with each one older than 70. If the bill passed, it would enable Roosevelt to appoint six more Supreme Court justices immediately, increasing the size of the court to 15 members. The Democrat dominated Congress, he believed, would undoubtedly approve the appointment of judges friendly to Roosevelt and his New Deal agenda.
The proposal never got off the ground, as Roosevelt's explanation regarding why the proposal was necessary fell flat.
Both the federal government, and the States, have court systems. The shared power by both the federal government and the State governments to establish a judiciary is a concurrent power.
With the ability to establish the inferior courts also comes the authority to eliminate them. Congress, in addition to the authority to establish federal inferior courts, can also shut them down. When in the 2012 Republican Campaign Newt Gingrich stated that Congress should use the federal marshall to bring unconstitutional judges to face members of Congress and answer for their actions, he was accurate that Congress can do that.
Trade Routes and Offenses Against The Law of Nations
Article I Section 8, Clause 10 authorizes Congress to define and punish piracies and felonies committed on the high seas, and offenses against the Law of Nations.
One of the factors in having this included was the problem with piracy in the Caribbean, as well as difficulties the new nation was having with the Barbary Pirates (Muslims). Though the United States was careful to create a system of justice that included due process for the citizens of the nation, the Constitution gave the federal government the power to punish offenses by foreign forces on the high seas without having to worry about habeas corpus, while still providing a courtroom setting for the offenders. In Federalist 42, Madison carefully explains that this provision "extends no further than to the establishment of courts for the trial of these offenses," such as military courts, or international courts for international war crimes.
This clause is the only place where the Law of Nations is mentioned. Some historians claim that the capitalization of the "Law of Nations" suggests that the founders were specifically referring to Vatell's volumes of which the founders often used for definitions and the clarification of concepts like Natural Born Citizen.
War, Army, and Navy
Article I, Section 8, Clause 11 gives Congress the power to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.
During the debates, according to Madison's Notes on the Constitutional Convention, the delegates debated over whether or not to give the legislative branch the power to make war. After intense debate, it was decided to grant the Commander in Chief, the President of the United States, the authority to "wage" war, and Congress the power to declare war. A declaration of war is a formal declaration that warns those not involved to stay out of the conflict. If those entities become involved, they become open targets. The president, as per the debates, may wage war without prior approval by Congress, or without a declaration of war being issued.
The ability to wage war, however, is checked by the fact that the House of Representatives are able to refuse to fund any military conflict. This keeps the president from abusing his position as Commander in Chief by giving Congress a way to limit executive wartime authorities. If the President continues to act upon his war powers in a manner not approved of by Congress, and the President does so despite the lack of funding for the military operations, Congress also has the authority to impeach the President in order to stop the executive's objectionable actions.
A Letter of Marque and Reprisal was a government license authorizing a private vessel 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. These mercenaries was also known as "privateers."
Congress was also given the power to make rules regarding captures on land and water. This is the clause used when the Bush administration, with the blessings of Congress, decided to hold prisoners captured during the war on terrorism at Guantanamo Bay, and to use military tribunals as the vessel of their trials.
Article I, Section 8, Clauses 12-16 authorizes Congress:
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Remember that one of the primary reasons for deciding to hold the Constitutional Convention in the first place was to defend the union with a uniformed military. Note that the fear of an army being used by a centralized government, and a potentially tyrannical government for that matter, as had been in the case with the British Empire, influenced the writings of this document, and encouraged the founders to limit the existence and funding of an army to two years at a time. A navy, however, was deemed as much more important, particularly because of the need to protect trade routes, and America's immediate waterways and inlets. Therefore, the authority to provide and maintain a navy was granted in perpetuity. The United States Marine Corps, from the beginning, falls under the umbrella of the United States Navy.
The rules for the governance of the armed forces do not fall under the purview of the Constitution. It is up to Congress to provide the governing rules. Any claim that rules regarding the military are unconstitutional is a bad argument. According to Article I, Section 8, Clause 14, it is up to Congress to set the rules, regardless of the Constitution. Military training in order for the armed forces to be well disciplined may not benefit from same social rules of the civilian world. Therefore, the basis of governance over the armed forces is not the Constitution, but instead the Uniform Code of Military Justice. However, it is the military's duty to protect and preserve the U.S. Constitution, and in a manner of tradition, Constitutional Principles have an unofficial influence on military politics.
Congress also has the authority to call forth the Militia to execute the laws of the Union (Constitutional federal laws), suppress insurrections (inserted in response to Shays' Rebellion), and repel invasions (one may consider the illegal entry into the United States an invasion, therefore this clause gives the federal government the authority to use the militia to guard the national borders). Currently, in this country, we have an organized militia (National Guard, State Militias), and an unorganized militia (you and I). U.S. Code Title 10 still defines these militias as such.
Article I, Section 8, Clause 17 calls for the Congress to exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.
This clause was for the creation of Washington DC, giving the United States Congress exclusive legislative powers over the District of Columbia and other federal properties, and to allow the federal government to erect military bases, and other necessary federal facilities by consent of the Legislatures of the States in which those properties are obtained, and for the federal government to purchase those properties. This makes land seized for conservation, and National Parks, unconstitutional, for those were not approved by the States, nor purchased by the federal government, and finally it is not being utilized for the purpose of the erection of "needful buildings."
Necessary and Proper Clause
Article I, Section 8, Clause 18 is also known as the "necessary and proper" clause. It reads:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
Today's government officials misuse this clause greatly. Notice the emphasis on carrying into execution the "foregoing powers" (authorities herein granted). What that means is that the Congress may make laws that fall within the authorities granted by the U.S. Constitution that the Congress recognizes to be "necessary and proper." Today's federal government has taken this clause to mean they can make "any" law they feel to be necessary and proper.
"The plain import of the clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress. But it is merely a declaration for the removal of all uncertainty, that the means of carrying into execution those, otherwise granted, are included in the grant." --Joseph Story, Commentaries on the Constitution, 1833
In order to carry out some express powers of the Constitution sometimes certain actions by the government are necessary and proper. For example, when establishing a post office, as expressly authorized by this article and section, the federal government will have to grade the land, hire construction crews, purchase the equipment for carrying out the services of the post office, and so forth. All of these things are necessary and proper in order to carry out the "foregoing power" of establishing a post office.
This clause is also sometimes referred to as the "Elastic Clause."
Concurrent Powers: Powers that are shared by the state and the federal government. The power to enforce immigration is also a concurrent power.
Duties: A tax levied by a government on the import or export of goods.
Excise: Tax on the manufacture, sale, or consumption of goods, or upon licenses to pursue certain occupations, or upon corporate privileges.
Exclusive Powers: Sole authority over a particular power, be it for the States within their own territorial boundaries, or sole federal powers. Also known as Reserved Powers.
Express Powers: Authorities explicitly authorized to the federal government by the U.S. Constitution.
Implied Powers: Legal or governmental authority not expressly stated by the U.S. Constitution, but considered to be logical extensions or implications of the other powers delegated in the Constitution. The concept of Implied Powers is often defended by the Necessary and Proper Clause (Article I, Section 8, Clause 18). Implied Powers is an unconstitutional concept.
Imposts: A tax, especially an import duty; Import Duty is a tariff paid at a border or port of entry to the relevant government to allow a good to pass into that government's territory.
Questions for Discussion:
1. True power of government is the ability to make law. Is listing the authorities in Article I the founders way of telling us that?
2. How has the unconstitutional concept of Implied Powers been used in today's political atmosphere?
3. How has the war powers been misused in recent years?
4. Name examples of how the Commerce Clause has been misused?
5. If post roads are the only mention of roadways in the Constitution, then what does that say about recent attempts by the federal government to fund public works projects?
6. The Necessary and Proper Clause depends upon the laws being within Constitutional Authority. Are there other clauses requiring this as well?
Andrew M. Allison, Mr. Richard Maxfield, K. Delynn Cook, and W. Cleon Skousen, The Real Thomas Jefferson; New York: National Center for Constitutional Studies (2009).
Articles of Confederation, March 1, 1781; http://avalon.law.yale.edu/18th_century/artconf.asp
David McCullough, John Adams; New York: Simon and Schuster (2001).
Donald Porter Geddes, Franklin Delano Roosevelt - A Memorial; New York: Pitman Publishing Corporation (1945).