The Preamble & Article I: The Legislative Branch
Upon meeting in Philadelphia in 1787 and finding the Articles of Confederation deficient, Congress set about drafting a new document for a new, post-war form of government. Remember, that although General Cornwallis surrendered in Yorktown, Virginia in 1781, the war was not formally over until 1783. After three years under the Articles, delegates from a few States met in Annapolis, Maryland, and agreed that all of the States had to meet again in 1787 to fix this problem.
The Preamble is not a list of powers, although there are those who argue that it is, but it sets out what the delegates were attempting to do.
- form a more perfect Union
- establish Justice
- insure (sic) domestic Tranquility
- provide for the common defence (sic)
- promote the general Welfare (not provide, but to promote health, happiness, prosperity and well being)
- secure the Blessings of Liberty to ourselves and our Posterity
Article I comprises 10 sections, or clauses that enumerates the powers and restrictions of Congress, which is divided into two Houses, the House of Representatives and the Senate.
Section 2: The House of Representatives
- Representatives must be at least 25 years old, a citizen of the United States for a minimum of seven years, and must be an inhabitant of the state from which they are elected by the time they are elected.
- Representatives are to be apportioned to the States based on the population of all free peoples and indentured servants, excluding Indians not taxed. Also, for tax purposes and representation, slaves counted as 3/5 of a person.
- The ratio of representatives to citizens will not exceed 1/30,000.
- If any vacancies occur prior to a term being fulfilled, the Executive authority of the state shall issue Writs of Election to fill the vacancy.
- The House chooses the Speaker and other officers, and has the sole power of Impeachment.
Depending on the State, slaves were taxed as property. There are those who say that this was included to appease the southern states and keep them in the Union. For those who believe this is true, consider this: At the time of the adoption of the Constitution, slavery was still legal in the following northern states: New Hampshire (Live Free or Die), New York, Connecticut, Pennsylvania, and New Jersey. Some of these states had instituted laws that prevented citizens from obtaining more slaves, and the slave population was declining, but in all but one of these cases, slavery was not abolished until the time period between 1827 (New York) and 1848 (Connecticut).
Slavery was legal in eleven of the original thirteen states. Rhode Island abolished it in 1774, prior to the Revolution, followed by Massachusetts in 1781. Vermont abolished slavery in 1777 when it became its own Republic, but was not admitted to the Union until 1791.
New Jersey freed people born into slavery in the year 1804. However, slaves who were imported were left slaves for life. Slavery was not officially abolished in New Jersey until the passage and ratification of the Thirteenth Amendment in 1865.
The Thirteenth Amendment outlawed slavery and involuntary servitude, while the Fourteenth Amendment made all former slaves citizens of the United States, with all rights and privileges conferred to citizens.
Section 3: The Senate
- The Senate is comprised of two Senators from each state, chosen by the State Legislators. The term is six years, and each Senator gets one vote.
- At the beginning of each Congress, the Senators are divided into three classes, depending on when re-election occurs (1/3 of the Senate every two years). The First Class are those closest to election time, and the Third Class are those who have just been recently elected.
- To be a Senator, the candidate must be at least 30 years of age, a citizen of the US for nine years, and must be a citizen of the state from which they have been elected.
- The Vice President is the President of the Senate, but has no vote unless there is a tie.
- The Senate chooses its own officers, and a President pro tempore (for the time) in the absence of the Vice President, or if he has to exercise the office of President of the United States.
- The Senate holds the sole power to try Impeachments. In the case of the President being Impeached, the Chief Justice (of the Supreme Court) will preside over the proceedings. Two thirds consensus is required for Impeachment.
- If Impeachment is reached, the maximum penalty is removal from office, and disqualification to hold any Office of Honor, Trust or Profit under the United States. However, the removed party will still be subject to criminal/civil trial and penalties/punishments.
This section allowed the States themselves to have their own representatives in Congress, as a balance to the Representatives of the People. The Seventeenth Amendment changed the selection of Senators from the State legislators to the vote of the people. The States foolishly ratified this amendment (imo), and stripped themselves of representation in the Federal government.
Any vacancies can be filled by the State’s Executive authority until the next meeting of the State Legislature. This was also amended by the Seventeenth Amendment where the State Executive issues a writ of election, and can only fill vacancies if the State Legislature empowers the Executive to do so.
A quick note about Offices of Honor, Trust or Profit. These are offices created by the President that need to be filled by appointment, such as the cabinet, Secretary of Energy, etc. What the final part of this section is saying is that if a verdict of Impeachment is reached, that person is no longer eligible to serve not only as a member of Congress or the President, they are can’t be appointed to an office either.
Section 4: How Congress is Elected
- State legislators choose the times, places and manner for the election of Representatives and Senators, but Congress can write a law to alter those decisions, except for the places of choosing for Senators.
- Congress assembles at least once a year starting the first Monday of December, unless changed by law. This was amended by the Twentieth Amendment to noon on the 3rd of January.
Section 5: How Congress Works
- Each House will judge the elections, returns, and qualifications of its own members.
- The entire House does not have to meet, but a majority of members constitutes a quorum to do business. Smaller numbers may leave on a day to day basis, but each House can only function as long as a majority is present. Each House holds the power to compel absent members to attend, and prescribe penalties for absences.
- Each House determines its own rules for proceedings, and punishments for disorderly behavior by members. Each House can expel a member by 2/3 majority vote.
- Each House will keep a journal of proceedings, except for those things requiring secrecy (national security), and the votes of each member will be entered at the request of 1/5 of those present.
- Neither House can adjourn for more than three days without the consent of the other House, or move to a place where the other House is not present.
Section 6: Congressional Compensation, Immunities and Restrictions
- Representatives and Senators will be paid, and are immune from arrest as long as they are attending a session or heading/returning to a session, except in cases of treason, felony or breach of the peace. They will not be questioned for speech or debate that may be said on the House floor.
- No Representative or Senator will be appointed to a civil office under the authority of the United States during the time he was elected for, if the office was created during that term, or the pay had been increased. In addition, no one holding such an office can become a member of either House as long as they are serving the term that they were appointed for. In other words, the Secretary of State can’t go back to being a Senator as long as their term as Secretary of State is not completed.
Section 7: How a Bill becomes Law
- The House of Representatives holds the Power of the Purse; all revenue bills originate from this House. (The Senate, however, has taken to gutting House revenue bills that are going nowhere, and changing them into new revenue bills, skirting the Constitution. I also saw someone on the Internet who interpreted this as meaning that only the House could create and pass a budget, which isn’t true)
- The Senate, however, may amend or concur with amendments in the bill.
- If a bill passes both the House and Senate, it is sent to the President. If the President vetoes, it is returned to the House that originated the bill with his objections, which are entered into that House’s Journal. It can then become law with 2/3 majority passage in the originating House, and 2/3 majority in the other House.
- The same requirements to pass a bill into law are applied to every Order, Resolution, and Vote (except a vote of adjournment)
Section 8: Congressional Powers
Congress has the power to:
- Lay and collect taxes, duties, imposts and excises
- Pay the debts
- Provide for the common defense of the United States
- Provide for the general welfare of the United States (provide for the health, happiness and prosperity of the nation)
- All duties, imposts and excises will be uniform throughout the country
- Borrow money on the credit of the United States
- Regulate commerce with foreign nations, among the States, and with the Indian tribes
- Establish a uniform rule of naturalization
- Establish uniform laws on the subject of bankruptcy throughout the nation
- Coin money, regulate the value of the money and foreign coin, and to set the standard for weights and measures
- Provide for punishment of counterfeiting securities and national coin
- Establish post offices and post roads (post roads are roads used to move and deliver the post (mail))
- Promote the progress of science and useful arts by securing for limited times to authors and inventors the right to their respective writings and discoveries (copyrights and patents)
- Constitute tribunals inferior to the Supreme Court (create Federal courts)
- Define and punish piracies and felonies on the high seas, and offenses against the law of nations (international law/relations)
- Declare war
- Grant letters of Marque and reprisal
- Make rules concerning captures on land and water (Congress makes the rules on what to do with prisoners)
- Raise and support armies, but appropriation of money for that use can’t be longer than a term of two years
- Provide and maintain a navy
- Make rules for the government and regulation of land and naval forces
- Provide for the calling forth of the militia to execute the law of the Union, suppress insurrections and repel invasions
- Provide for the organizing, arming, and disciplining the militia, and governing those that may be employed in the service of the United States; however, it is reserved to the States to appoint the officers and train the militia according to the discipline prescribed by Congress
- Congress has exclusive legislative power in all cases over the district that will become the seat of government (Washington DC), and authority over all places purchased by the Federal government for forts, magazines, dockyards, and other needful buildings with the consent of the legislature of the state from which the property is purchased.
- To make all necessary and proper laws for carrying into execution the preceding powers
The promotion of the progress of science and the “useful” arts grants the protections of copyrights and patents to their creators. It should also be noted that “useful arts” refers to manufacture and craftsmanship, not the performing arts, while science included philosophers and literature.
The aforementioned “Necessary and Proper” clause, along with the General Welfare clause are considered to be “elastic clauses”. By elastic, it is meant that it is open to interpretation. Alexander Hamilton, the first Secretary of the Treasury, considered the Constitution to have “implied powers”, powers not specifically enumerated, but implied, as in these two clauses. Thomas Jefferson, and the Father of the Constitution, disagreed with Hamilton’s assessment, but lawmakers and judges have been searching for implied powers ever since.
Section 9: Congressional Restrictions
Powers prohibited to Congress:
- The importation of slaves will only be allowed until the year 1808, but until that time, a duty of $10 per person imported may be imposed by Congress (As of the year 1808, Congress outlawed the practice of importing slaves)
- The writ of habeas corpus (requirement that an arrested person be brought before a judge) cannot be suspended except in times of rebellion or invasion where the public safety may require it
- No bill of attainder or ex post facto law can be passed (a bill of attainder is a law that is passed targeting a single group or individual, making something a crime and convicting them at the same time. An ex post facto law is a law that makes something a crime retroactively, that someone has already done)
- No capitation, or other direct tax shall be laid, unless in proportion to the census or enumeration contained within the Constitution directs (this last part was to cover things that required a census be taken, but hadn’t been taken yet. The first census was taken in 1790, three years after the adoption of the Constitution, so those three years had to be covered by the Constitution)
- No tax or duty can be imposed on items exported from any state
- No preference of one state over another can be established by regulation of commerce or revenue, and vessels bound to or from one state will not have to enter, clear or pay duties in another. (This means that Congress can’t decree that items entering a port in Virginia don’t have to pay duties they would normally have to pay in New York, or that only certain items can enter certain ports)
- Money can’t be taken from the Treasury, except to pay for appropriations prescribed by law, and an accounting of all receipts and expenditures will be published
- The United States will not bestow any Titles of Nobility, and anyone serving in an Office of Profit or Trust (an office in the Executive Branch) will accept gifts, pay, office or Title from any foreign power or dignitary without the consent of Congress
The Founding Fathers decided it was better to push back for twenty years the ability of Congress to create a national law outlawing the importation of slaves. The northern colonies had already done so, but did not move to free the slaves. Nobody ever claimed that the Founding Fathers were perfect human beings, they were flawed like the rest of us. Did they include this to appease the south? Did they include it because they just didn’t want to deal with it? We (or I) may never know. Slavery was perhaps the darkest blemish on this nations history.
Section 10: State Restrictions
States are prohibited from:
- Entering into any treaty, alliance or confederation
- Granting letters of Marque and reprisal
- Coining money
- Emitting bills of credit
- Cannot make or use anything other than gold or silver coin as tender to pay debts (this is kind of outdated since we don’t use that kind of coin anymore)
- Cannot pass any bill of attainder or ex post facto law
- Cannot pass laws impairing the obligation of contracts
- Cannot grant any title of nobility
- Cannot lay imposts or duties on imports or exports, except where it is necessary for executing inspection laws, without the consent of Congress
- The net produce of any such duties and imposts on imports or exports from any State will go into the US Treasury for use by Congress
- All State laws regarding duties and imposts on imports and exports will be subject to the revision and control of Congress
- Cannot lay any duty of tonnage without the consent of Congress
- Keep troops or ships of war in time of peace without the consent of Congress
- Cannot enter into any agreement or compact with another state or foreign power without the consent of Congress
- Cannot engage in war unless it is actually invaded, or is in such imminent danger that it cannot delay without the consent of Congress
In other words, the States are prohibited from doing those things reserved exclusively to Congress, as well as some things Congress is not allowed to do, such as Bills of Attainder and ex post facto laws.
Within Article I, Congress was defined, requirements of eligibility, and the powers and restrictions of Congress outlined, as well as restrictions on the States. While the government is set up as a system of checks and balances, Congress has the most power and authority. Some of the power granted are not even listed in this article. They are listed elsewhere, such as the Senate’s authority to ratify treaties and confirm Executive appointments.