To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
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;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
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;
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;—And
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.
Many Americans think of their Constitution as a document that protects the liberties of American citizens by defining those things that the federal government cannot do. This is the central concern of the first ten amendments to the Constitution, which today we call the Bill of Rights. But in fact, in many respects Article I, Section 8, constitutes the heart and soul of the U.S. Constitution. It specifically enumerates the powers that the federal government is permitted to exercise. The initial version of this article, as outlined in the Virginia Plan, gave an open-ended grant of power to the Congress, simply providing that Congress would have the power “to legislate in all cases to which the separate States are incompetent,” but when the Committee of Detail produced a comprehensive first draft of a constitution in early August 1787, that general grant of power was replaced by the more specific enumeration of powers that appears in Article I, Section 8. Among the most important powers enumerated in Article I, Section 8, are:
1. As previously mentioned, the power to levy taxes—the ability of the government to provide for itself a permanent revenue with which to finance its operations—was the single most important power given to the new federal government. The broad purposes for which that power was granted—to “provide for the common Defence and general Welfare of the United States”—have been interpreted in widely different ways over the course of the nation’s history, with the general trend leading toward an expansion of activity financed by the federal taxation power.
2. The “commerce power” has proven to be one of the most important and far-reaching provisions of the federal Constitution. Utilizing an ever-expanding definition of its power to regulate commerce “among the several States,” the federal government has broadened the definition of “commerce” to include not only the shipment of goods across state lines but also many other forms of activity: the building of interstate roads; the power to regulate the business activities of corporations; and the power to pass environmental legislation, consumer-protection laws, and occupational-safety regulations.
3. Establishing post offices and post roads may seem mundane enterprises, but this provision of the Constitution, in conjunction with an expansive view of Congress’s role in promoting the “general Welfare” and regulating commerce, marked the beginnings of the creation of a national infrastructure that would tie the thirteen previously independent and sovereign states into a single nation.
4. The clause relating to the promotion of science and useful arts gives to Congress the power to enact patent and copyright laws.
5. Clauses ten through sixteen of Article I, Section 8, deal with the war powers of Congress. If the “power over the purse” has long been considered to be the most important of a government’s powers, the power over the “sword”—the ability not only to declare war but also to vote on appropriations for the financial support of war—has run a close second. Congress’s power to declare war overlaps with the power of the president, as commander in chief of the nation’s armed forces, to direct the actual conduct of war. In one sense, this overlap is part of the Constitution’s system of separation of powers, but in another it has become a significant source of constitutional controversy in recent years. In numerous cases since the mid-twentieth century—in the Korean War, the Vietnam War, the First Gulf War, and most recently, the wars in Iraq and Afghanistan—the president has proceeded with the prosecution of the war without a formal congressional declaration of war.
6. Congress’s power over the appropriation of money gives it a substantial say over how—or whether—a war should be fought, but it has only rarely denied funds for the support of an army or navy once a war is under way.
7. The seventeenth clause, giving to Congress the power to “exercise exclusive Legislation … over such District … as may … become the Seat of the Government,” is the basis on which Congress created the District of Columbia, which is regarded not as a state but as a federal territory and the nation’s capital.
8. The final provision of Article I, Section 8, has proven to be one of the most important—and controversial—provisions of the Constitution. By giving Congress the power to make all laws “necessary and proper” for carrying into effect the previously enumerated powers, the framers of the Constitution opened the door to a significant expansion of federal power. Within just a few years of the adoption of the Constitution, some of the most important figures of the revolutionary era found themselves in bitter disagreement on the meaning of the phrase “necessary and proper,” with President Washington’s secretary of the treasury, Alexander Hamilton, arguing for a broad construction of its meaning (for example, as “needful,” “useful,” or “conducive to”) and Thomas Jefferson and James Madison arguing for a strict construction (for example, as “absolutely necessary”). This line of constitutional difference between “broad constructionists” and “strict constructionists” was a bitter source of contention in the period leading up to the Civil War and continues in somewhat diminished form between the respective proponents of a more limited or more active federal government even today.
SECTION 9
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
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.
No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
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.
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.
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.
Article I, Section 9, outlines those actions that the federal government may not take.
The most controversial of these prohibitions is contained in the very first item. The Convention delegates from South Carolina and Georgia, whose slave economies were still expanding, insisted that no legislation interfering with the African slave trade be permitted until at least twenty years after the adoption of the Constitution. The prohibition of any legislation affecting “the Migration or Importation of such Persons as any of the States now existing shall think proper to admit” was intended to ensure that protection. As in all instances in which the Constitution deals with the institution of slavery, neither the word “slave” nor “slavery” is explicitly mentioned in the text of the document. In 1808 the U.S. Congress enacted legislation abolishing the international slave trade, but during that twenty-year interval some two hundred thousand slaves were imported from Africa into the United States.
Many of the most important prohibitions to federal government action laid down in Article I, Section 9, were designed to protect fundamental liberties handed down to Americans through English common law. Perhaps the most important of these was the privilege of habeas corpus, the right of a prisoner to challenge his imprisonment in a court of law. On at least a few occasions American presidents have suspended this privilege while either suppressing rebellion or protecting the public safety. During the Civil War, President Abraham Lincoln held “disloyal persons” suspected of giving aid and comfort to the Confederate cause in prison without benefit of trial. More recently, President George W. Bush, citing provisions of the Patriot Act as well as implied executive powers, sanctioned the holding of several hundred “enemy combatants” in the “war on terror.”
The prohibition against bills of attainder, the issuing of edicts aimed at punishing individuals or groups of individuals without benefit of trial, and the ban on ex post facto laws—criminal laws aimed at punishing individuals for actions taken before the law itself was passed—were also rooted in traditions of English common law. The prohibition of taxes on exports was a purely political bargain between northern and southern states, and was designed to protect the interests of the South, whose agricultural exports formed an important part of its economy. The prohibition against direct taxes unless such taxes were levied precisely in proportion to the number of citizens in each of the states was another attempt to protect the institution of slavery from being taxed out of existence; this provision was subsequently changed by the passage of the Sixteenth Amendment, making possible the imposition of a federal income tax.
While it would be unthinkable today for our federal government to grant a title of nobility to any of its citizens, the provision in Article I, Section 9, prohibiting the granting of titles of nobility and placing additional restrictions on receiving a “present, Emolument, Office, or Title” from a foreign state reflected the strong commitment of the framers of the Constitution that their government should be a “republican” one, and not one that reflected the aristocratic ways of Europe.
SECTION 10
No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
The provisions in Article I, Section 10, stipulate those things that the state governments are prohibited from doing. The most important of these are:
1. Individual states may not enter into separate treaties with foreign nations.
2. The governments of the states are bound by the same requirements as the federal government in the prohibition of bills of attainder, ex post facto laws, laws impairing obligations of contracts, and granting titles of nobility.
3. State governments may not issue currency for the purpose of paying debts unless that currency is in gold and silver. This provision came in reaction to the laxness of some state governments that issued depreciated or, in some cases, worthless currency during the period of the Revolution. This provision marked the beginning—but only the beginning—of the creation of a single national currency.
4. During the period of the Confederation, many states, eager to raise their own revenues, levied tariffs on goods entering their ports from other states. The new Constitution reserved the power of taxing imports to the federal government alone, preventing states from enacting their own tariffs.
5. Although the individual states were permitted to maintain their own militias for the maintenance of order within their boundaries, the Constitution prohibits states from maintaining either a standing army or a navy in time of peace; it also prohibits the states from entering into agreements with other states or foreign powers for military purposes.
ARTICLE II
SECTION 1
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate sha
ll chuse from them by Ballot the Vice President.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
The opening words of Article II, Section 1, are both remarkably simple and maddeningly vague: “The executive Power shall be vested in a President of the United States of America.” While other sections of Article II provide some specificity on the nature and extent of presidential power, for the most part the language of Article II relating to executive power is far less specific than that of Article I defining congressional power.
Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence Page 4
