Thursday, August 19, 2010

Article I, Section 8, Clauses 1 through 10

The Constitution is the Solution
Temecula Constitution Study with Douglas V. Gibbs
August 19, 2010

Article I, Section 8, Clauses 1 through 10 (Next Week’s Handout Will Address the Remaining Clauses. . .

The Authorities of the United States Federal Government

Article I, Section 8, Clause 1:

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Duties, Imposts and Excises are taxes.

Duties: A tax levied by a government on the import or export of goods.

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.

Excise: Tax on the manufacture, sale, or consumption of goods, or upon licenses to pursue certain occupations, or upon corporate privileges.

In other words, the federal government could tax the States on just about everything. But, the federal government could not tax unless it was uniform, nor could it tax directly the individual citizens.

Why was the federal government given the power of taxation? The reasons are listed in this clause: to “to pay the Debts and provide for the common Defence and general Welfare of the United States.” In fact, this clause is a part of the primary reason for the Constitutional Convention in the first place.

Some of the members of the political system of the new nation had been complaining that the Articles of Confederation did not provide the United States with the ability, as a united nation, to defend itself. It was argued that the independent militias needed to be joined under a single federal army, and there also needed to be a single federal navy. In order to have a military, however, the federal government would also need the power to tax in order to pay for the military it would be afforded. If the federal government was able to wage war, to help pay for the expensive endeavor of war, the federal government would need to be able to borrow money for the war effort, as well. Therefore, a new Constitution was needed to give the federal government more power for these reasons. Since these were the primary, and most important, powers granted, they were listed first under Article I, Section 8.

The ability to tax, however, was something the Founding Fathers wished to step lightly regarding. The Intolerable Acts, a series of actions by the British Empire against the colonies before the Revolutionary War, were nearly all taxes (save for the quartering of British troops), and were among the reasons for the launch of the Revolution. The power to tax by a government can easily be abused, so the Founding Fathers wished to be careful on how that power was given. Therefore, originally, the federal government taxed the States. Any direct taxation of the people was performed by State governments, not by the federal government.

Article 1, Section 2, Clause 3 lays down how the States would be taxed, reading: "Representatives and direct taxes shall be apportioned among the several states which may be included in this union, according to their respective numbers..."

The reference to direct taxes in that clause is a reference to a direct taxation on the States, not individuals. In order to clarify that such taxation must also be proportioned based on a State’s population, Article I, Section 9, Clause 4 reads:

"No capitation or other direct tax shall be laid, unless in proportion to the Census or Enumeration herein before directed to be taken."

The Founding Fathers understood that a massive central government would require a healthy diet of revenue, so they limited taxation to be from the States, and from foreign governments. The Founders were careful not to give the federal government expansive powers to tax the people. In fact, under the Articles of Confederation, the central government had no taxing powers at all. Revenues were raised by the sovereign States, and then provided as the States felt was necessary.

The Founding Fathers did not adopt an income tax. In fact, Thomas Jefferson made it a point to denounce the notion of income taxation in his first inaugural address, saying “a wise and frugal government. . . Shall not take from the mouth of labor the bread it has earned.” The purpose of government was to protect the God-given rights of life, liberty and property, not to take them away.

The first federal income tax was introduced in 1862, but was abolished in 1872. A flat-rate income tax was adopted in 1894, but was ruled unconstitutional because it was not levied in proportion to state population. Finally, by 1913, the progressives got their income tax. To garner support, they reduced tariff rates, and then proclaimed they were having a revenue problem, and direct taxation via an income tax was necessary. President Woodrow Wilson convened an emergency session of Congress, and the income tax was pushed through with a constitutional amendment to allow it, eventually becoming law on October 3, 1916.

The income tax ended the ability of the citizens to influence the federal government, giving the federal government a seemingly unlimited access to funds, and allowing it to pry into every business transaction and the records of every working person in America. In the process, the federal government began to fund programs, diminishing the ability of the state and local governments to finance their activities, and rendering the States to becoming beggers for federal funding, and giving the federal government the ability to extort the States whenever they desired a particular behavior by the States - extorting the States by simply threatening to withhold federal funding.

The income tax also repudiated Jefferson’s natural rights doctrine. Private property became accessible by the government. The amount of income the individual citizen got to keep became determined by the needs of the government. And if the taxpayer refused to pay up? The government was given the authority to imprison the citizen, and confiscate his wealth, until the payment of taxes due was made.

Taxation was established by the Founding Fathers to “pay all Debts and provide for the common Defence and general Welfare of the United States.

Notice that there is no mention of any of the federal programs we see in force today. The common Defence meant national security, and the general Welfare was of the Republic, not individuals, as some politicians would argue today. If the general Welfare clause meant what the progressives indicate, including entitlement programs, then rather than general Welfare, the term would be “individual Welfare.” Still, the income tax is Constitutional, because a Constitutional amendment, the 16th Amendment, was passed.

Article I, Section 8, Clause 2

To borrow money on the credit of the United States;

The federal government was given the power to borrow money, primarily for military reasons. The intent was not for the nation to enter into a constant chain of deficit spending. Alexander Hamilton, the first Secretary of the Treasury, however, championed an economic model similar to what would later become the Keynesian economic model. As a result, Hamilton increased our national debt, as did his successors. It wasn’t until 1836, during Andrew Jackson’s presidency, that the deficit was completely paid off. We remained in the black for two years, before a growing government again went into debt.

Article I, Section 8, Clause 3:

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

Remember, the States did not get along. They argued over the borders between the states, and trade among themselves. 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 was actually hindering commerce across State lines, the federal government in this clause was given the authority to do what it took to make the flow of commerce more regular. However, this clause has been interpreted to mean the opposite by the federal government of today. Now, the Commerce Clause 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?

Article I, Section 8, Clause 4:

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

This clause established naturalization rules regarding immigrants that wished to become new citizens of this nation. Note that it does not give the federal government any authority over the actual immigration of these persons, nor the enforcement authority to enforce immigration.

The part of the clause calling for uniform laws on bankruptcy was to ensure each state followed the same rules and laws regarding bankruptcy. Before the Constitution was ratified, each State had its own rules on bankruptcy, and also citizens would simply cross state lines to start over financially, leaving no uniform laws to govern bankruptcies.

Article I, Section 8, Clause 5:

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

Notice that Congress is not given the authority to issue federal reserve notes, or any other kind of paper money. The coins were expected to 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, with paper money, the banks realized they could loan on the gold in their vaults backing the currency, leaving less gold as a reserve. When this happened, if there was a bank run, where everyone brought their money in to cash it in for gold at once, the bank would be left in a situation where they did not have enough gold to cover all of the notes.

Also, 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 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.

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 I, Section 8, Clause 6:

To 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; and, indeed, without it those powers 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.”

Article I, Section 8, Clause 7:

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. Note, also, that the clause 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 would make the Interstate highway system, and 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 remained connected, and receive their mail, they would keep up their roads.

In 1817, Congress proposed 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.

The text of his statement regarding his veto is as follows:

March 3, 1817

To the House of Representatives of the United States:

Having considered the bill this day presented to me entitled "An act to set apart and pledge certain funds for internal improvements," and which sets apart and pledges funds "for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense," I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.

The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

A restriction of the power "to provide for the common defense and general welfare" to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.

If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.

I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.

James Madison,
President of the United States

Article I, Section 8, Clause 8:

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, hoping that by being under federal authority, the rules would be uniform.

Article I, Section 8, Clause 9:

To constitute tribunals inferior to the Supreme Court;

Establishes the lower federal courts, enabling Congress to establish new courts whenever necessary - a power often abused when parties sought to stack the courts.

Article I Section 8, Clause 10:

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.

The remaining clauses, which will be explained in next week’s handout, are:

- 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, dockyards, 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.
Added Note:

Remember when I told you that one of the reasons that the Founding Fathers divided the voting powers, and giving only the House of Representatives to the people, was because they feared the people being fooled by a tyranny, should the people have the vote of the President, Senate, and House completely? The following is from Madison’s Notes on the Constitutional Convention, where they discuss exactly that:

Madison Debates
May 31
Madison Debates Contents
Monday May 31 [FN1], 1787

William Pierce from Georgia took his seat.

In Committee of the whole on Mr. Randolph's propositions.

The 3d. Resolution "that the national Legislature ought to consist of two branches" was agreed to without debate or dissent, except that of Pennsylvania, given probably from complaisance to Docr. Franklin who was understood to be partial to a single House of Legislation.

Resol: 4. [FN2] first clause "that the members of the first branch of the National Legislature ought to be elected by the people of the several States" being taken up,

Mr. SHERMAN opposed the election by the people, insisting that it ought to be by the State Legislatures. The people he said, immediately should have as little to do as may be about the Government. They want information and are constantly liable to be misled.

Mr. GERRY. The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Massts. it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute. One principal evil arises from the want of due provision for those employed in the administration of Governmt. It would seem to be a maxim of democracy to starve the public servants. He mentioned the popular clamour in Massts. for the reduction of salaries and the attack made on that of the Govr. though secured by the spirit of the Constitution itself. He had he said been too republican heretofore: he was still however republican, but had been taught by experience the danger of the levilling spirit.

Mr. MASON, argued strongly for an election of the larger branch by the people. It was to be the grand depository of the democratic principle of the Govtt. It was, so to speak, to be our House of Commons-It ought to know & sympathise with every part of the community; and ought therefore to be taken not only from different parts of the whole republic, but also from different districts of the larger members of it, which had in several instances particularly in Virga., different interests and views arising from difference of produce, of habits &c &c. He admitted that we had been too democratic but was afraid we sd. incautiously run into the opposite extreme. We ought to attend to the rights of every class of the people. He had often wondered at the indifference of the superior classes of society to this dictate of humanity & policy; considering that however affluent their circumstances, or elevated their situations, might be, the course of a few years, not only might but certainly would, distribute their posterity throughout the lowest classes of Society. Every selfish motive therefore, every family attachment, ought to recommend such a system of policy as would provide no less carefully for the rights and happiness of the lowest than of the highest orders of Citizens.

Mr. WILSON contended strenuously for drawing the most numerous branch of the Legislature immediately from the people. He was for raising the federal pyramid to a considerable altitude, and for that reason wished to give it as broad a basis as possible. No government could long subsist without the confidence of the people. In a republican Government this confidence was peculiarly essential. He also thought it wrong to increase the weight of the State Legislatures by making them the electors of the national Legislature. All interference between the general and local Governmts. should be obviated as much as possible. On examination it would be found that the opposition of States to federal measures had proceded much more from the officers of the States, than from the people at large.

Mr. MADISON considered the popular election of one branch of the National Legislature as essential to every plan of free Government. He observed that in some of the States one branch of the Legislature was composed of men already removed from the people by an intervening body of electors. That if the first branch of the general legislature should be elected by the State Legislatures, the second branch elected by the first-the Executive by the second together with the first; and other appointments again made for subordinate purposes by the Executive, the people would be lost sight of altogether; and the necessary sympathy between them and their rulers and officers, too little felt. He was an advocate for the policy of refining the popular appointments by successive filtrations, but though it might be pushed too far. He wished the expedient to be resorted to only in the appointment of the second branch of the Legislature, and in the Executive & judiciary branches of the Government. He thought too that the great fabric to be raised would be more stable and durable, if it should rest on the solid foundation of the people themselves, than if it should stand merely on the pillars of the Legislatures.

Mr. GERRY did not like the election by the people. The maxims taken from the British constitution were often fallacious when applied to our situation which was extremely different. Experience he said had shewn that the State legislatures drawn immediately from the people did not always possess their confidence. He had no objection however to an election by the people if it were so qualified that men of honor & character might not be unwilling to be joined in the appointments. He seemed to think the people might nominate a certain number out of which the State legislatures should be bound to choose.

Mr. BUTLER thought an election by the people an impracticable mode.

On the question for an election of the first branch of the national Legislature by the people.

Massts. ay. Connect. divd. N. York ay. N. Jersey no. Pena. ay. Delawe. divd. Va. ay. N. C. ay. S. C. no. Georga. ay.

The remaining Clauses of Resolution 4th. [FN3] relating to the qualifications of members of the National Legislature, [FN3] being pospd. nem. con., as entering too much into detail for general propositions:

The Committee proceeded to Resolution 5. [FN4] "that the second, [or senatorial] branch of the National Legislature ought to be chosen by the first branch out of persons nominated by the State Legislatures."

Mr. SPAIGHT contended that the 2d. branch ought to be chosen by the State Legislatures and moved an amendment to that effect. Mr. BUTLER apprehended that the taking so many powers out of the hands of the States as was proposed, tended to destroy all that balance and security of interests among the States which it was necessary to preserve; and called on Mr. Randolph the mover of the propositions, to explain the extent of his ideas, and particularly the number of members he meant to assign to this second branch.

Mr. RAND observed that he had at the time of offering his propositions stated his ideas as far as the nature of general propositions required; that details made no part of the plan, and could not perhaps with propriety have been introduced. If he was to give an opinion as to the number of the second branch, he should say that it ought to be much smaller than that of the first; so small as to be exempt from the passionate proceedings to which numberous assemblies are liable. He observed that the general object was to provide a cure for the evils under which the U. S. laboured; that in tracing these evils to their origin every man had found it in the turbulence and follies of democracy: that some check therefore was to be sought for agst. this tendency of our Governments: and that a good Senate seemed most likely to answer the purpose.

Mr. KING reminded the Committee that the choice of the second branch as proposed (by Mr. Spaight) viz. by the State Legislatures would be impracticable, unless it was to be very numerous, or the idea of proportion among the States was to be disregarded. According to this idea, there must be 80 or 100 members to entitle Delaware to the choice of one of them. -Mr. SPAIGHT withdrew his motion.

Mr. WILSON opposed both a nomination by the State Legislatures, and an election by the first branch of the national Legislature, because the second branch of the latter, ought to be independent of both. He thought both branches of the National Legislature ought to be chosen by the people, but was not prepared with a specific proposition. He suggested the mode of chusing the Senate of N. York to wit of uniting several election districts, for one branch, in chusing members for the other branch, as a good model.

Mr. MADISON observed that such a mode would destroy the influence of the smaller States associated with larger ones in the same district; as the latter would chuse from within themselves, altho' better men might be found in the former. The election of Senators in Virga. where large & small counties were often formed into one district for the purpose, had illustrated this consequence Local partiality, would often prefer a resident within the County or State, to a candidate of superior merit residing out of it. Less merit also in a resident would be more known throughout his own State.

Mr. SHERMAN favored an election of one member by each of the State Legislatures.

Mr. PINKNEY moved to strike out the "nomination by the State Legislatures." On this question.

[FN5]Massts. no. Cont. no. N. Y. no. N. J. no. Pena. no. Del divd. Va. no. N. C. no. S. C. no. Georg no. [FN6]

On the whole question for electing by the first branch out of nominations by the State Legislatures, Mass. ay. Cont. no. N. Y. no. N. Jersey. no. Pena. no. Del. no. Virga. ay. N. C. no. S. C. ay. Ga. no. [FN7]

So the clause was disagreed to & a chasm left in this part of the plan.

[FN8] The sixth Resolution stating the cases in which the national Legislature ought to legislate was next taken into discussion: On the question whether each branch shd. originate laws, there was an unanimous affirmative without debate. On the question for transferring all the Legislative powers of the existing Congs. to this Assembly, there was also a silent affirmative nem. con.

On the proposition for giving "Legislative power in all cases to which the State Legislatures were individually incompetent."

Mr. PINKNEY & Mr. RUTLEDGE objected to the vagueness of the term incompetent, and said they could not well decide how to vote until they should see an exact enumeration of the powers comprehended by this definition.

Mr. BUTLER repeated his fears that we were running into an extreme in taking away the powers of the States, and called on Mr. Randolp for the extent of his meaning.

Mr. RANDOLPH disclaimed any intention to give indefinite powers to the national Legislature, declaring that he was entirely opposed to such an inroad on the State jurisdictions, and that he did not think any considerations whatever could ever change his determination. His opinion was fixed on this point.

Mr. MADISON said that he had brought with him into the Convention a strong bias in favor of an enumeration and definition of the powers necessary to be exercised by the national Legislature; but had also brought doubts concerning its practicability. His wishes remained un ltered; but his doubts had become stronger. What his opinion might ultimately be he could not yet tell. But he should shrink from nothing which should be found essential to such a form of Govt. as would provide for the safety, liberty and happiness of the community. This being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to.

On the question for giving powers, in cases to which the States are not competent, Massts. ay. Cont. divd. [Sharman no Elseworth ay] N. Y. ay. N. J. ay. Pa. ay. Del. ay. Va. ay. N. C. ay. S. Carolina ay. Georga. ay. [FN9]

The other clauses [FN10] giving powers necessary to preserve harmony among the States to negative all State laws contravening in the opinion of the Nat. Leg. the articles of union, down to the last clause, (the words "or any treaties subsisting under the authority of the Union," being added after the words "contravening &c. the articles of the Union," on motion of Dr. FRANKLIN) were agreed to witht. debate or dissent. The last clause of Resolution 6. [FN11] authorizing an exertion of the force of the whole agst. a delinquent State came next into consideration.

Mr. MADISON, observed that the more he reflected on the use of force, the more he doubted the practicability, the justice and the efficacy of it when applied to people collectively and not individually. -A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force agst. a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse [FN12] unnecessary, and moved that the clause be postponed. This motion was agreed to nem. con.

The Committee then rose & the House


FN1 The year "1787" is here inserted in the transcript.

FN2 The transcript changes "Resol: 4." to "The fourth Resolution."

FN3 In the transcript the words "Resolution 4th" are changed to "the fourth Resolution" and the phrase "the qualifications of members of the National Legislature" is italicized."

FN4 In the transcript the words "Resolution 5," are changed to "the fifth Resolution" and the words of the resolution are italicized.

FN5 This question [FN6] omitted in the printed Journal, & the votes applied to the succeeding one, instead of the votes as here stated [this note to be in the bottom margin]. [FN6]

FN6 In the transcript the vote reads: "*Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no-9; Delaware divided"; and Madison's direction concerning the footnote is omitted. The word "is" is inserted after the word "question."

FN7 In the transcript the vote reads: "Massachusetts, Virginia, South Carolina, aye-3; Connecticut, New York, New Jersey, Pennsylvania, Delaware, North Carolina, Georgia, no-7."

FN8 In this paragraph the transcript italicizes the following phrases: "the cases in which the national Legislature ought to legislate," "whether each branch shd. originate laws," "for transferring all the Legislative powers of the existing Cong. to this Assembly"; and the phrase "a silent affirmative nem. con." is changed to "an unanimous affirmative, without debate."

FN9 In the transcript the vote reads: "Massachusetts, New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, Georgia, aye- 9; Connecticut divided (Sherman, no. Ellsworth, aye)."

FN10 The phrase, "giving powers necessary to preserve harmony among the States to negative all State laws contravening in the opinion of the Nat. Leg. the articles of union" is italicized in the transcript.

FN11 The words "the sixth Resolution" are substituted in the transcript for "resolution 6" and the phrase "authorizing and exertion of the force of the whole ags.t a delinquent State" is italicized.

FN12 The word "resource" is substituted in the transcript for "recourse."

A Special Thanks to:

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Thursday, August 12, 2010

Article I, Section 7: How a Bill Becomes A Law; Article I, Section 8: The Powers Granted To The Federal Government

Temecula Constitution Study - The Powers Given To The Federal Government are Limited, and Few

"I consider the foundation of the Constitution as laid on this ground that 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.' To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, not longer susceptible of any definition." --Thomas Jefferson, Opinion on the Constitutionality of a National Bank, 1791

"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." --James Madison, Federalist No. 45

“Government's view of the economy could be summed up in a few short phrases: If it moves, tax it. If it keeps moving, regulate it. And if it stops moving, subsidise it” - - Ronald Reagan

The Constitution is the Solution
Constitution Study - August 12, 2010

Study Group Leader: Douglas V. Gibbs
@ Faith Armory, 27498 Enterprise Cir. W. #2, Temecula, CA

Article I, Section 7: How A Bill Becomes A Law, Article I, Section 8: The Powers Granted To The Federal Government

Article I, Section 7 explains how a bill becomes a law. Originally, before the 17th Amendment, when the State Legislatures appointed the U.S. Senators, the process was simple: The bill would be approved by the people (House of Representatives), The States (Senate), and the Federal Government (President). 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, did not like the bill, he could veto the bill, but it would not stop the bill from becoming law if the people (House) and States (Senate) were able to overturn the veto with a two thirds vote from each house of Congress. Be it by overriding a veto, or by the president signing the bill into law, that is the process on how a bill becomes a law according to the U.S. Constitution. . . For some reason an image of a little bill sitting on the steps of Capitol Hill, singing "I am only a bill. . . " comes to mind.

Article I, Section 8 is a list of powers given to the U.S. Congress. Since Congress is the only part of the federal government that has been vested with the power to make law (Article I, Section 1), that would make Article I, Section 8 a list of the powers given to the federal government. Amendments can give the federal government additional powers, but must be ratified by 3/4 of the States first.

Except where given by amendment, Article I, Section 8 is the sole list of powers the federal government is authorized to possess. As per Amendment 10, any power not listed in Article I, Section 8 (or in an amendment), nor prohibited to the States, is a power that belongs to the States. This means that the federal government is limited to the powers listed in Article I, Section 8 (or an amendment).

You will also notice that each power listed in Article I, Section 8, has something to do with protecting, or promoting, the union. That would make since, considering the primary reason for the formation of the federal government, as listed in the Preamble, was to form a more perfect union.

Article I, Section 8, Clause 1: . . . We Will Discuss Each Clause We Can Get To In Depth Tonight!

Article I, Section 8, Clause 1:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Key Words:

Tax: Money compulsorily levied by government authority on individuals, property, businesses, etc.

Duty: A tax levied by a government on the import or export of goods.

Imposts: A tax, especially an import duty, tax levied on imports or exports.

Excise: Taxes on the manufacture, sale, or consumption of goods, or upon licenses to pursue certain occupations, or upon corporate privileges. In current usage covers about everything besides income taxes.

The Founding Fathers allowed the federal government to tax just about anything they wanted, as long as they did not tax the individuals directly.

Uniform: Every tax was to be treated the same within a jurisdiction (same tax rate, etc.). Tea arriving at the port of Charleston would need to have the same rate of federal duties as tea arriving at the port of Baltimore.

Beyond that, interpretation gets very, very complex and there seem to be a lot of court cases on whether a tax violates this clause or not. I think the Sixteenth Amendment to the U.S. Constitution was to get around the problem of the income tax not being uniform in some persons’ eyes, i.e., it is apportioned based on income, which varies, rather than strictly on numbers of persons from the census. Also involved was the complicated issue of “direct” (applied to all instances of a good or service) versus “indirect” (applied sort of to a potential, like a licensing fee) taxes. Whether one interpreted the income tax as one or the other affected whether it violated the uniformity clause. However, all this gets into legal areas in which AP is not an expert, so you’re forbidden to quote me! You might want to check if the Law Library has an Answer Person (or perhaps a friendly reference librarian).

Thursday, August 5, 2010

Article I, Sections 4-7; Executive Comparison; Executive Orders; Recent Judicial Activism That Violates Article III

Constitution Study, Temecula CA, August 5, 2010 with Douglas V. Gibbs

Article I, Sections 4-7; Executive Comparison; Executive Orders; Recent Judicial Activism That Violates Article III

Article I, Section 4 addresses elections, and assembly of the U.S. Congress (both Houses).

Article I, Section 5 addresses the internal rules of the Houses of the U.S. Congress.

Article I, Section 6 addresses compensation for members of Congress, and all rules associated with compensation.

Article I, Section 7 addresses bills, and the process of such bills becoming law.

The powers provided to the Executive Branch are very different than to the Congress, and does not allow the Executive Branch to make law in any way. The office is primarily tasked with protecting the union.

Executive Orders:

Executive Orders are not mentioned in the U.S. Constitution. Many believe that executive orders, in addition to the functions of modifying how an executive branch department or agency does its job (rule change), or to issue a proclamation, can modify existing law. Modifying law, however, would need to accompany the authority to make law, and that authority rests solely with the Legislative Branch. Therefore, any executive order that modifies the law is unconstitutional. Article I, Section 1 of the U.S. Constitution grants to the Congress all legislative powers, therefore, the Executive and Judicial branches cannot make law, repeal law, strike down law, or modify law. Only Congress can.

Executive Orders are nothing new, for George Washington issued several Presidential Proclamations. Executive Orders and Proclamations, once again, are not law, but they do sometimes have the effect of statutes. A typical modern Proclamation might declare a day to be in someone's honor.

The Emancipation Proclamation had a broader effect, but did not free the slaves. The Emancipation Proclamation was not a law. It was a proclamation. It did change the course of the war, proclaiming the Civil War to be all about slavery, which encouraged the European Nations to step back in regards to their support of the Confederacy.

In line with that, we have often seen Executive Orders instruct the government to do no business with a country we are at war with. Executive orders are subject to judicial review, and can be declared unconstitutional. But since the executive orders hold no power over law, we can simply refuse to follow unconstitutional Executive Orders if we wish. Congress can refuse to follow Executive Orders that modify law, as well, since the Legislative branch alone is tasked with making law. Problem is, Congress has not been functioning in accordance with the U.S. Constitution, and has been allowing the Executive branch to wield more power.

This is why November is so important. We need to make sure that we vote into Congress representatives that understand the U.S. Constitution, or else Obama will continue his attempt to make Congress irrelevant, and will continue to pursue a course of making the Executive branch more powerful than our Founding Fathers ever intended it to be.


Recently, federal judges in district courts made rulings on the Immigration Law in Arizona, and Proposition 8 in California. The attached articles explain:


California Proposition 8 Declared Unconstitutional is Unconstitutional

By Douglas V. Gibbs

Proposition 8 in California was approved by voters in November of 2008. The new amendment to the California State Constitution dictates, “Only marriage between a man and a woman is valid or recognized in California.” A pair of gay couples sued, stating that the state constitutional amendment "deprives them of due process and of equal protection of the laws contrary to the Fourteenth Amendment and that its enforcement by state officials violates 42 USC § 1983.

U.S. Code Title 42, Section 1983 is legislation put into place in accordance with the Fourteenth Amendment. Chief U.S. District Judge Vaughn Walker, a lower court federal judge, made his ruling on the case today, and came to the conclusion that Proposition 8 is unconstitutional, claiming it violates the civil rights of those that exhibit gay behavior.

There are a number of issues regarding this issue and the U.S. Constitution. Not only is marriage a state issue, which means this case has no business in the federal courts, but also the decision by Judge Walker creates a contradiction in the court system.

A few weeks ago U.S. District Judge Joseph Tauro struck down the federal Defense of Marriage Act, indicating that the law "interferes with the right of a state to define marriage."

So which is it? The Left uses Case Law to define the Constitution, rather than the text of the founding document, and they use precedent law as their guiding light. Yet, the precedent law in place by Judge Tauro doesn't matter to Judge Walker. And how lawless does it make our system if two judges can disagree on whether definition of marriage is a state issue, and the Democrats agree with both?

On top of that, the courts claim they are enforcing the 14th Amendment. The amendment was designed to ensure that the emancipated slaves received the same rights and privileges as whites. The intent of the amendment is race, not behavior. If it is applied to behavior, such as the sexual behavior of homosexuals, how long before kleptomaniacs use it to justify their behavior, or pedophiles use it to justify their behavior, or polygamists use it to justify their behavior? Where would it stop?

One must also consider that the 14th Amendment ends with the words "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Yet, what we are seeing is the judiciary trying to enforce it.

A conflict of interest also exists in this case. Judge Walker is gay, so of course he is going to rule against Proposition 8.

What we are seeing is judges ruling based on personal opinion, or political agenda, rather than the law of the land. How is that the rule of law?

The losers of this ruling will appeal, and when the case goes to the next level, it will be appealed again by whichever group loses. Ultimately, this case will go to the Supreme Court, and with it, state sovereignty will go on trial. The real question is, will the Supreme Court apply the law, or act lawless as well?


Judge Bolton Blocking Parts of Arizona Law Unconstitutional

By Douglas V. Gibbs

We know that the Democrats could care less about the U.S. Constitution. They hold case law higher than the law of the land. In fact, sometimes I am not even sure they have read the Constitution in the first place.

A great example of how ignorant these bastards are when it comes to the Constitution is Judge Bolton's decision to strike down parts of Arizona's Immigration Law (SB 1070).

It is bad enough that the federal government is suing a State government. It is worse that the reason for the lawsuit is that the federal government is angry that the State of Arizona is willing to enforce the law. . . law that the federal government, many folks believe, is supposed to be enforcing themselves.

Well, according to the U.S. Constitution, Article IV, Section 4, the federal government "shall protect each [State] from invasion."

As for the enforcement question, if one reads the Constitution, the federal government is not granted the authority to enforce immigration law (aside from sealing the border to protect us from invasion) anywhere in the text of the document. The 10th Amendment states that if an issue is not a federal authority, nor prohibited to the States, the authority belongs to the States. Therefore, enforcing immigration law at the State level is not only Constitutional, it is their responsibility.

The Constitution, when it comes to this lawsuit, comes to the rescue again in Article III. In the Ninth Circuit Court, which is an inferior federal court, Judge Susan R. Bolton struck down parts of the Arizona immigration law. Problem is, she didn't even have the Constitutional authority to hear the case in the first place.

Article III, Sec. 2, clause 2 says:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction…

“Original” jurisdiction means the power to conduct the “trial” of the case (as opposed to hearing an appeal from the judgment of a lower court), meaning it should bypass all of the lower courts, and jump right up to the U.S. Supreme Court, simply because the State of Arizona is one of the parties in the case.

Sadly, this not only proves that Bolton either does not understand the U.S. Constitution, or is blatantly ignoring it, but that Attorney General Eric Holder, who filed the case in a court that does not have jurisdiction to hear it in the first place, also is either ignorant of the Constitution, or is circumventing it as well.

Jan Brewer, if she understands State Sovereignty, and the U.S. Constitution as I believe she does, now has a fantastic avenue to pursue. She can file a Petition for Removal before federal district court Judge Susan R. Bolton demanding that the case be removed to the Supreme Court on the ground that under Art. III, Sec. 2, clause 2, U.S. Constitution, only the Supreme Court has jurisdiction to conduct the trial of this case.

Then, if Judge Bolton denies the Petition for Removal (and as a liberal she probably would), Governor Brewer should then file a Petition for Writ of Mandamus (an order to a lower court to do something correctly) in the U.S. Supreme Court asking that high court to order Judge Bolton to transfer the case to the U.S. Supreme Court.

The federal district court judge has unconstitutionally taken a case the U.S. Constitution prohibits the lower court from hearing, and that is a usurpation of power.

Let's hope Governor Brewer is also aware of this.