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Constitution Class Handout
Instructor: Douglas V. Gibbs
Lesson 04
Legislative Prohibitions
Prohibitions to the
Federal Government, and the States
- Prohibitions to the Federal Government
The
Slave Trade and Immigration
The
common misconception is that Article I, Section 9, Clause 1 is obsolete. The abolition of slavery in the United States
made the clause obsolete, we are told.
In reality, only a part of the clause is not longer in force. The clause addressed the Atlantic slave
trade, and the migration of people
into the United States. Slavery was abolished by Amendment 13 so the part of
Article I, Section 9, Clause 1 that addresses slavery is obsolete. But is the
part about migration still in force?
One
could say that the “migration” portion of the clause is still in force because
the 13th Amendment only addresses slavery. The standard belief among historians
is that the entire clause is no longer in force.
The
ramifications of this clause may indeed reach into today's issue regarding
illegal immigration.
Why
would the Founding Fathers include a mention of migration in a clause that is
essentially geared toward the abolition of the importation of slaves?
The
word “importation” in this clause applies wholly to slaves.
The
word, migration, then, would seem to apply wholly to non-slaves.
The
intention was that since the Constitution, as the contract that created our
federal government, is a document that grants powers to the federal government,
and that all authorities not expressly delegated, are reserved to the States,
it was expected that immigration would remain as an issue that would be
addressed by the States.
Other
national governments prohibited migration as they saw fit, so the Founding
Fathers determined that the new United States Government must have that same
authority.
According
to the clause, however, from the year 1808 Congress would possess the power to
stop the importation of slaves, as well as the migration of people the Congress
felt must be prohibited from entering this country as immigrants, through the
Congress’ power of legislation.
The
Constitution was written specifically in regards to the federal
government. All powers originally
belonged to the States. Some of those
authorities were granted to the federal government for the purpose of
protecting and preserving the union.
Therefore, all authorities regarding immigration originally belonged to
the States, and before 1808 the States had sole authority regarding all
immigration issues.
In
Article I, Section 9, the federal government was given the opportunity to
regulate immigration, but not until 1808.
The reason for delaying the power to prevent migration were, to be
simply put, to give the States twenty years to attract as many people as
possible without Congressional regulatory consideration. After all, at this
time in history we had immense and almost immeasurable territory, peopled by
not more than two and a half million inhabitants. Therefore, migration was
encouraged, especially of the kind of people that would bring a benefit to the
new nation. The immigration of able, skilful, and industrious Europeans was
encouraged.
Note
that this clause gives the federal government the authority to prohibit certain
persons from migrating into the United States, but it does not give the federal
government the authority to dictate to the States which persons the States must
admit inside their borders.
Habeas
Corpus
Article
I, Section 9, Clause 2 states that “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.”
Habeas
corpus is a legal term that means quite literally in Latin: "you may have
the body." In legal terms, Habeas corpus is a writ that releases a
prisoner from unlawful detention. Habeas corpus comes from British common law,
and has historically served as an important legal instrument safeguarding
individual freedom against arbitrary state action that includes detention
without the due process of law.
A
writ of habeas corpus is a summons with the force of a court order that demands
a prisoner be taken before the court, and that the custodian present proof of
authority, allowing the court to determine if the custodian has lawful
authority to detain the person. If the custodian does not have authority to
detain the prisoner, then the prisoner must be released from custody.
Habeas
corpus is designed to protect citizens against any detention that is forbidden
by law. The U.S. Constitution specifically includes the habeas procedure, and
instructs the Congress not to suspend such unless the detainment is the result
of a “Rebellion or Invasion,” adding that “the public Safety may require it.”
Normally,
habeas corpus proceedings accompany questions of jurisdiction and authorities
of the court that sentenced a defendant. The suspension of habeas corpus has
recently become an issue regarding the detainment of terrorists, but one must
ask if the public safety requires the suspension of habeas corpus in the case
of terrorists, as prescribed in the Constitution. Secondly, one must consider
that the Constitution applies to American citizens, so the question on whether
or not Article I, Section 9, Clause 2 applies to captured combatants seems to
be a moot point since it is obvious that the detained are not American
Citizens, and therefore are not protected by Constitutional protections. Also, remember that Congress has the sole
authority to make rules regarding captures on land and water as per Article I,
Section 8, Clause 11.
Bills
of Attainder
A
Bill of Attainder is when the legislature declares the guilt of a person or
group of persons, and punishes them without due process (the benefit of a
trial).
In
Britain, bills of attainder were used as a convenient way for the King to
convict subjects of crimes and confiscate their property without the bother of
a trial, and without the need for a conviction or indeed any evidence at all.
Such actions were seen as tyrannical because often this power was used against
political enemies, and the Founding Fathers did not wish to give the new
federal government those same kinds of powers. Some states, prior to the
Constitution, did use attainders against British loyalists, but the practice
all but disappeared after the Constitution so specifically forbid the use of
attainders by the U.S. Congress, and the States.
Prohibiting
the use of bills of attainder serves a number of purposes. One purpose is that
by disallowing the bills of attainder the separation of powers is reinforced.
By disallowing bills of attainder, it literally forbids the legislature from
performing a judicial function. Another purpose is in regard to the protection
of the concept of due process, which was later reinforced by the Fifth
Amendment to the Constitution.
The
true danger of a bill of attainder is that such a legislative act inflicts
punishment without a judicial trial, and takes away the life, liberty or
property of the target.
Ex
Post Facto law
Ex
post facto Law is literally retroactive law, or a law that retroactively changes
the legal consequences (or status) of actions committed or relationships that
existed prior to the enactment of the law. Ex post facto law could criminalize
actions that were legal when committed, or in the case of amnesty laws,
decriminalize certain acts or alleviate possible punishments. Generally
speaking, ex post facto laws are seen as a violation of the rule of law as it
applies in a free and democratic society. Ex post facto laws are expressly
forbidden by the United States Constitution.
Direct
Taxation
The
U.S. Constitution originally forbade direct taxation upon the people by the
federal government. Taxation of the
people by the federal government could only be laid in relation to population. When the idea for the income tax came to
fruition, an amendment (16th) had to be passed to allow for the direct taxation
of the people without dependence upon the enumeration of the population.
Article
I, Section 9, Clause 4 states that in addition to direct taxation, the federal
government was forbidden from using Capitation.
Capitation is a head tax. A Poll
Tax is a kind of head tax. In the
context of the period, any tax that singles out groups both directly and
indirectly regardless of possession of lands or personal property is
Capitation. Since Article I, Section 9 is a prohibitory section, the specific
call by the Founding Fathers in that clause was that there shall be No
Capitation, which included No Poll Tax.
In
early New England, in keeping with traditions from the homeland, capitation
(caput, meaning head), or poll taxes, were common. These taxes were levied as a
way to manipulate the people for the “good of the government.”
Alexander
Hamilton, though condemning capitation taxes in his Federalist Papers writings,
was in favor of “head taxes” for emergency revenue reasons. He felt that since
sources for revenue were so few, if the government needed to expand for any
reason, the ability to lay head taxes, or direct taxation, needed to be an
option. However, most of the Founding Fathers disagreed, not only because of
their belief that taxation must be indirect and small, but also because of
their opinion that the federal government must remain limited to the few
authorities granted to it by the U.S. Constitution.
Article
I, Section 9, Clause 4 forbids Congress to lay a tax upon individuals except
uniformly, and in proportion to the census provided for in Article I, Section
2, Clause 3, where this subject is first brought up. In other words, direct taxation was
forbidden. What the federal government
did was tax the States, based on proportion to the census, or enumeration. The States then taxed the people in order to
pay the tax to the federal government.
The method of taxation by the States was left up to each individual
State. The federal government, in this
way, used indirect taxation to tax the people.
As
we have learned, the U.S. Constitution is not designed to necessarily tell the
federal government what it can't do as much as it is designed to tell the
federal government what few authorities it has. But the Founders felt this to
be so important that in addition to not giving direct taxation to the Federal
Government as an authority, they felt they must also spell it out that the
Federal Government cannot tax in this manner in any form. This clause restricts
the Congress a lot more because it is prohibitive. Article 1, Section 8
provides a list of "enumerated powers," but knowing that politicians
would bend and twist meanings to gain more power, Article 1, Section 9 was
designed to spell out some very specific things the Congress is prohibited from
doing (such as direct taxation and capitation taxes).
Preference
in Commerce
Article
I, Section 9, Clause 6 states that “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
proposal was placed before the Constitutional Convention by the delegates from
Maryland, their fear being that congressional legislation might prefer
Chesapeake Bay ports of Virginia to those of their State. Under the Articles of
Confederation, each State was free to impose duties and make regulations to the
disadvantage of others, and it was desired that equality in commerce be
maintained in the future. This also gives us a clue to the intentions of the
Commerce Clause in Article I, Section 8. The Founding Fathers did not wish to
give the Federal Government control over commerce, only the ability to ensure
that commerce was maintained in an equitable manner in regards to the several
States.
U.S.
Treasury
Article
I, Section 9, Clause 7 reads: “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 was inspired by the lessons learned in regards to merry old England. The
Founding Fathers did not believe it should be in the power of the Executive
alone, or of the legislature alone, to raise or spend the money at will.
Article I, Section 7, Clause 1 requires that all bills for raising money must
originate in the House of Representatives; but they must then pass the Senate
and be signed by the President. In 1842 Congress began to make appropriations
by joint resolution; but as that also must be approved by both
Houses, and signed by the President, there is no real difference. Also, in the
interest of transparency to the people, the records of all monetary
transactions both of receipts and expenditures must be made available for
public scrutiny.
Divided
Allegiance
Article
I, Section 9, Clause 8 reads: “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.”
The
Founding Fathers did not believe there should be any foreign influences in the
affairs of our government.
This
provision was taken from a provision in the first section of Article VI of the
Articles of Confederation. It permitted persons holding office under a State to
accept, with the consent of Congress, the objectionable gifts or distinctions;
but the constitutions of at least two of the States at that time forbade them
altogether. This republic, being a nation born as a result of the tyranny of a
monarchy, should not grant titles of nobility, that much was easily understood.
Nobility betrayed the trust and honor of the people through the use of prestige
and favoritism. This was the kind of government that did not protect the
liberties of the people.
Jefferson,
as President, accepted from Alexander I of Russia a bust of that Emperor, which
he said would be "one of the most valued ornaments of the retreat I am
preparing for myself at my native home." He said that he had laid it down
as a law of his official conduct not to accept anything but books, pamphlets,
or other things of minor value; but his "particular esteem" from the
Emperor "places his image in my mind above the scope of the law."
However, without the consent of Congress, who was the final determining factor,
he could not have accepted that gift.
In
1810 Congress proposed an amendment, the original Thirteenth amendment (some
would call it the lost 13th Amendment because some records showed it was
ratified, then suddenly disappeared - as explained below), to add a heavy
penalty to this clause by this wording:
"If
any citizen of the United States shall accept, claim, receive or retain any
title of nobility or honor, or shall, without the consent of Congress, accept
and retain any present, pension, office or emolument of any kind whatever, from
any emperor, king, prince or foreign power, such person shall cease to be a
citizen of the United States, and shall be incapable of holding office of trust
or profit under them, or either of them."
The
people were told that the proposed amendment lacked the necessary ratifying
votes. Ongoing research has shown that the proposed amendment was indeed
properly ratified, the State Department WAS notified, and the amendment was on
the books and records of the various States until at least 1876. From 1810 to
1812, twelve states ratified this amendment. The War of 1812 destroyed the
library of Congress and these documents were thought destroyed, but in 1994 it
was discovered they still exist after a chance discovery in Maine in 1983 made
historians aware of the existence of the original 13th Amendment.
Terms:
Indirect
Taxation: An indirect tax is contrasted with a direct tax
which is collected directly by government from the people. An indirect tax, for example, may increase
the price of a good so that consumers are actually paying the tax by paying
more for the products. Another example
of indirect taxation is for one entity to tax another entity, and then the
second entity taxing the people to recoup the taxes it paid.
Joint
Resolution: A joint resolution is a legislative measure
requiring approval by the Senate and the House and then is presented to the
President for approval or disapproval.
There is generally no legal difference between a joint resolution and a
bill. Laws enacted by virtue of a joint
resolution are not distinguished from laws enacted by a bill. Constitutional
amendments are passed by joint resolutions, which are instead presented to the
States for ratification. Resolutions are
often temporary in nature.
Questions
for Discussion:
1. How was immigration regarded by the Founding
Fathers?
2. Why is Habeas Corpus so important?
3. If the Founding Fathers disagreed with
divided allegiance, what would they think of dual citizenship?
Resources:
Articles
of Confederation, March 1, 1781; http://avalon.law.yale.edu/18th_century/artconf.asp
Larry
Schweikart and Michael Allen, A Patriot’s History of the United States; New
York: Sentinel (2004).
Madison’s
Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
The
Original 13th Article of Amendment; American Patriot Friend’s Network:
http://www.apfn.org/apfn/13th.htm
Thomas J. DiLorenzo, Hamilton's Curse; New York: Three Rivers Press (2008).
- Prohibitions to the States
The
articles in the U.S. Constitution all apply to the federal government unless
otherwise noted. Article I, Section 10,
notes otherwise. Each clause begins with
the words “No State shall,” making Article I, Section 10 prohibitive to the
States.
Article
I, Section 10, Clause 1 begins by disallowing the States to enter into any
treaty, alliance, or Confederation. The
goal was to keep the union intact, have all dealings with foreign governments
go through the federal government, and to ensure there was no divided loyalties
among the States. Treaties and alliances
are external issues.
The
disallowance of the States entering into a confederation was the argument used
against the Confederacy during the American Civil War. President Lincoln considered the southern
states seceding and joining into a confederation to be unlawful, partly due to
this clause in the Constitution.
However, by seceding, the States no longer fell under the jurisdiction
of the Constitution, making the Confederacy a legal arrangement.
No
State could grant letters of Marque and Reprisal, or coin money. These authorities were granted to the federal
government in Article I, Section 8.
States were not allowed to coin money so that they would not use
currency as a means to gain an unfair advantage over each other in relation to
interstate commerce.
Article
I, Section 10 prohibits the States from emitting bills of credit. Bills of credit take two forms. Bills of credit are receipts for currency,
such as a treasury note, and bills of credit can be items of credit such as
bonds. What this means is that the States
could not issue paper money, nor could States issue instruments of debt. In other words, the States were not allowed
to borrow money. Today, all but two
States of the union are in debt. The
State deficits are in violation of the U.S. Constitution.
The
States were also disallowed from passing bills of attainder, ex post facto law,
or passing any law that would impair the obligation of contracts. The States, as the federal government, could
not issue any title of Nobility. Ex post
facto law has become a large concern in recent politics. Ex post facto law is retroactive law. By disallowing the passage of ex post facto
law, the States (just like the federal government) cannot constitutionally pass
laws retroactively. A gun legal at the
time of purchase cannot be made retroactively illegal. Immigrants who entered the State illegally
cannot be made retroactively legal. A
tax cannot be retroactively imposed, creating a sudden large balance of tax
due.
States
are allowed to tax imports or exports, but only with the consent of
Congress. Because States are tasked with
having their own inspection laws, any costs necessary for executing those
inspection laws may be recouped through imposts or Duties without the consent
of Congress.
“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.” In other words, the States cannot over tax
imports and exports. They are only to
charge taxes necessary to cover their costs, such as “executing inspection
laws.” Any net produce, or what would be
considered “profit” in the private sector, goes to the U.S. Treasury. All of the States inspection laws, or other
laws regarding imports and exports, are also subject to revision and control by
the Congress.
Having
a military is also forbidden to the States in time of peace, except with the
consent of Congress. However, if a State
is invaded, or the State feels they are in imminent danger, they are allowed to
form a military. Currently, 23 States
have State Defense Forces, or “State Militias.”
In recent years, State Defense Forces have proven vital to homeland
security and emergency response efforts.
Questions
for Discussion:
1. What does the various prohibitions to the
States have in common?
2. How do the prohibitions to the States relate
to concepts like the Tenth Amendment?
Resources:
21st-Century
Militia: State Defense Forces and Homeland Security, Heritage Foundation: http://www.heritage.org/Research/Reports/2010/10/The-21st-Century-Militia-State-Defense-Forces-and-Homeland-Security
Madison’s
Notes on the Constitutional Convention, Avalon Project, Yale University: http://avalon.law.yale.edu/subject_menus/debcont.asp
UNITED
STATES v. COMSTOCK (No. 08-1224), Clarence Thomas Dissenting Opinion (State
Sovereignty): http://www.law.cornell.edu/supct/html/08-1224.ZD.html
(2010)
Copyright:
Douglas V. Gibbs, 2015
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