"All legislative powers HEREIN GRANTED shall be vested in a
Congress of the United States, which shall consist of a Sen-
ate and House of Representatives."
MEANING:
Article I, Section 1, of the U.S. Constitution--
(1) Indicates where the legislative power of the
national government is located:
In the two houses of the U.S. Congress--in
the U.S. Senate and the U.S. House of Repre-
tives;
(2) Stipulates federalism:
The constitutional division and distribution
of governmental authority between the na-
tional government and the states.
"HEREIN GRANTED" was included to make clear the
following:
The U.S. Constitution did not mandate a
total transfer of governmental power from
the states to the national government.
Congress was not to exercise ALL legislative
powers of government. Congress was to exer-
cise only those granted, or delegated, to it
by the U.S. Constitution.
THE ENUMERATED (EXPRESSLY DELEGATED) POWERS OF CON-
GRESS:
U.S. Constitution, Article I, Section 8:
"The Congress shall have power ..."
ARTICLE I, SECTION 8, CLAUSE 1 (THE TAX CLAUSE):
"To lay and collect taxes, duties, imposts and excises,
to pay the debts and provide for the common defense and
general welfare of the United States; but all duties,
imposts and excises shall be uniform throughout the
United States;"
MEANING OF THE TAX CLAUSE:
Gongress is granted the power to levy taxes, duties,
imposts, and excises--and, by implication, spend mon-
ey from the U.S. Treasury--for three purposes:
(1) To pay the DEBTS of the United States;
(2) To provide for the COMMON DEFENSE of the
United States;
(3) To provide for the GENERAL WELFARE of the
United States.
Meaning of "general welfare of the United
States":
The GENERAL INTERESTS of the U.S.A.;
The NATIONAL INTEREST(S);
MATTERS OF COMMON CONCERN to the entire
American nation--the COMMON NATIONAL
GOOD.
LIMITATION ON THE TAXING POWER OF CONGRESS:
The Tax Clause places a limitation on the taxing pow-
er of Congress.
The clause provides that "All duties, imposts and ex-
cises shall be uniform throughout the United States."
[DUTY: A tax on imports--customs duties and tar-
iffs.]
[EXCISE: A tax imposed on--
The manufacture, transportation, sale, or
consumption of commodities within the U.S.A.
(e.g., the federal taxes on liquor and tobac-
co);
or
Privileges and procedures of a business na-
ture exercised and carried on within the
country (e.g., the Social Security payroll
tax and the federal corporation income tax,
the latter being a tax on the privilege of
doing business as a corporation.]
[IMPOST: A general term comprehending both
duties and excises.]
The requirement that duties, imposts, and excises
be uniform throughout the U.S.A. prevents Congress
from--
Levying a tax that falls unequally on the people
in various states;
[For example, if a certain article imported
from abroad is taxed at five percent of value
at the port of New York, it must be taxed at
the same rate at the ports of Charleston,
Savannah, Mobile, Port Arthur, etc.]
or
Defining a tax in terms of state political lines.
[For example, Congress may not levy a high
tax on oil produced within the U.S.A. and
exempt from the levy all oil from wells lo-
cated inside the borders of Texas. Vice
versa, Congress may not levy a tax on oil
and make the levy applicable to oil from
Texas wells, but not from the wells in other
states.]
ARTICLE I, SECTION 8, CLAUSE 2 (THE BORROWING CLAUSE):
"To borrow money on the credit of the United States;"
MEANING OF THE BORROWING CLAUSE:
Congress is granted the power to borrow money on the
promise of the U.S. national government to pay it
back.
ARTICLE I, SECTION 8, CLAUSE 3 (THE COMMERCE CLAUSE):
"To regulate commerce with foreign nations, and among the
several states...;"
MEANING OF THE COMMERCE CLAUSE:
Congress is delegated the power to regulate two im-
portant types of commerce:
FOREIGN COMMERCE (INTERNATIONAL COMMERCE)--com-
merce between the U.S.A. and other countries;
INTERSTATE COMMERCE--commerce among the states of
the American federal union.
ARTICLE I, SECTION 8, CLAUSES 4-10: [miscellaneous powers]
CLAUSE 4: "To establish an [a} uniform rule of naturali-
zation and uniform laws on the subject of
bankruptcies through the United States;"
[NATURALIZATION: The legal process by which an alien
is admitted to citizenship.]
[BANKRUPTCY LAWS: Laws that enable debtors to obtain
release from their obligations upon surrender of
their property to their creditors.]
CLAUSE 5: "To coin money, regulate the value thereof,
and of foreign coin, and fix the standard of
weights and measures;"
[The power to coin money and regulate its value--in
junction with the power to borrow money on the credit
of the United States--gives Congress the authority to
ISSUE PAPER MONEY AND MAKE IT LEGAL TENDER FOR THE
PAYMENT OF ALL DEBTS.]
CLAUSE 6: "To provide for the punishment of countefeit-
ing the securities and current coin of the
United States;"
CLAUSE 7: "To establish post offices and post roads;"
CLAUSE 8: "To promote the progress of science and the
useful arts, by securing for limited times for
authors and inventors the exclusive right to
their respective writings and discoveries;"
CLAUSE 9: "To constitute tribunals inferior to the Su-
preme Court;"
MEANING OF CLAUSE 9:
Congress is given power to enact laws establish-
ing the lower federal courts.
CLAUSE 10: "To define and punish piracies and felonies
committed on the high seas, and offenses
against the law of nations;"
MEANING OF CLAUSE 10:
Congress is given the power to enact laws--
Defining what constitutes piracy or other
serious crimes committed on or against U.S.
flag ships on the high seas;
Making a crime under international law a
crime under American national law;
Providing for the punishment of these crimes.
ARTICLE I, SECTION 8, CLAUSES 11-16 (WAR POWERS CLAUSES):
CLAUSE 11: "To declare war ... and make rules concerning
captures on land and water;"
CLAUSE 12: "To raise and support armies, but no appropri-
ation to that use shall be for a longer term
two years;"
PURPOSE OF THE TWO-YEAR LIMITATION:
The two-year limitation on a congressional appro-
priation to raise and support armies was intended
to ensure the dependence of the Army on Congress.
The limitation reflected the Framers' belief in
CIVILIAN SUPREMACY--the supremacy of the civil
authorities over the military establishment--and
the Framers' fear of standing armies.
LONGSTANDING CONGRESSIONAL PRACTICE:
Annual appropriations for all branches of the
Armed Forces.
CLAUSE 13: "To provide and maintain a navy;"
WHY NO TIME LIMITATIONS WERE PLACED ON APPROPRIATIONS
FOR THE NAVY:
The Navy was not thought to be a threat to liber-
ty.
A two-year limitation would not be feasible.
Construction of naval vessels often takes longer
than two years. Hence, the appropriationa have
to be pledged in advance.
CLAUSE 14: "To make rules for the government of the land
and naval forces;"
SIGNIFICANCE:
Persons in the U.S. Armed Forces do not have the
same constitutional rights and liberties as do
persons not subject to military jurisdiction.
Congress may legislate for those in the Armed
Forces with more flexibility than is allowed for
civilians.
Examples of congressional exercise of this much
broader legislative authority over military per-
sonnel include Articles 133 and 134 of the UNI-
FORM CODE OF MILITARY JUSTICE:
ARTICLE 133, UCMJ:
Prohibits and provides punishment for
"conduct unbecoming an officer and a
gentleman."
ARTICLE 134, UCMJ:
Outlaws and provides punishment for "all
disorders and neglects to the prejudice
of the good order and discipline in the
Armed Forces."
CLAUSE 15: "To provide for calling forth the Militia to
execute the laws of the Union, suppress insur-
rections and repel invations;"
MEANING OF CLAUSE 15:
Congress is granted the power to provide for
FEDERALIZING the state militias, or "national
guards"--i.e., to provide for calling the state
troops into the national military service.
There are three purposes for which Congress may
provide for federalizing the national guards, or
state militias:
To execute the laws of the Union--i.e., to
enforce national laws;
[National laws include (1) provisions of
U.S. Constitutions, (2) statutes of Con-
gress, (3) U.S. treaties, and (4) final
decisions of the U.S. Courts.]
To suppress insurrections--i.e., to put down
any armed rebellion against the U.S. national
government or against the duly constituted
government of any state;
To repel invasions--i.e., to defend the coun-
try against foreign attack.
Acting under the authority given to it by Clause
15, Section 8, Article I, Congress has enacted
statutes authorizing the President to employ the
state militias--as well as the U.S. Armed Forces
--against "combinations of persons too powerful
to be dealt with" by ordinary judicial processes.
CLAUSE 16: "To provide for organizing, arming, and dis-
ciplining 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 ac-
cording to the discipline prescribed by Con-
gress;
APPLICATION OF & PRACTICE UNDER CLAUSE 16:
Congress and the states cooperate in maintaining
the state militias, or national guards.
Normally, the national guards operate under the
direction of their respective states, subject to
the provisions made by Congress.
When called into "the service of the United
States," the national guards become parts of the
U.S. military forces and are subject to govern-
ment by Congress and to the direction of the
President.
When the national guards are not in the national
military service, Congress can still exercise a
considerable degree of control. How? Through
conditions attached by Congress to federal grants
of money to the states for the national guards.
ARTICLE I, SECTION 8, CLAUSE 17 (THE EXCLUSIVE LEGISLATION
CLAUSE):
"To exercise exclusive legislation in all cases whatso-
ever, over such district ... as may ... become the seat
of the Government of the United States, and 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;"
MEANING OF THE EXCLUSIVE LEGISLATION CLAUSE:
Congress is given exclusive legislative authority
over--
The District of Columbia;
All federal installations--military and civilian
--located within the borders of a state.
ARTICLE I, SECTION 8, CLAUSE 18 (THE ELASTIC CLAUSE, OR
NECESSARY & PROPER CLAUSE):
"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 Govern-
ment of the United States, or in any department or of-
ficer thereof."
MEANING OF THE NECESSARY & PROPER CLAUSE:
The Necessary and Proper Clause (or Elastic Clause)--
Contains a MORE GENERAL, MUCH BROADER grant of
legislative power to Congress;
Vests in Congress authority to make laws which
are NECESSARY AND PROPER (i.e., APPROPRIATE) for
--
Exercising the other powers of Congress en-
umerated, or listed, in the U.S. Constitu-
tion;
Putting into effect the powers granted by the
U.S. Constitution to the other branches of
the national government.
Article IV, Section 3, Paragraph 1:
"New states may be admitted by Congress into this Union; but
no new state shall be formed or erected within the jurisdic-
tion of any other state; nor any state be formed by the junc-
tion of two or more states, or parts of states, without the
consent of the legislatures of the states concerned as well
as of the Congress."
MEANING:
Congress is granted the power to admit new states into
the Union.
However, a restriction is placed on this power to protect
existence and territorial integrity of the existing
states.
Article IV, Section 3, Paragraph 2:
"The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or
other property of the United States;"
Sixteenth Amendment (The Income Tax Amendment):
[Ratified in 1913.]
"The Congress shall have power to lay and collect taxes on
incomes, from whatever sources derived, without apportionment
among the several states, and without regard to any census or
enumeration."
HOW THE SIXTEENTH AMENDMENT AFFECTS THE TAXING POWER OF CON-
GRESS:
The Sixteenth Amendment gives Congress the power to levy
a tax on incomes, without having to apportion the burden
of the tax among the states according to population.
The amendment frees the federal income tax from the re-
striction placed on federal direct taxes by Article I,
Section 9, Clause 4:
"No capitation, or other direct, tax shall be laid,
unless in proportion to the census or enumeration
herein before directed to be taken."
The Sixteenth Amendment had the effect of rescinding the
decision of the U.S. Supreme Court in POLLOCK V. FARMERS
LOAN AND TRUST COMPANY (1895):
The federal income tax is a direct tax and must be
apportioned among the states according to population.
The federal income tax in question is an unappor-
tioned federal direct tax and thus a violation of
of Article I, Section 9, of the U.S. Constitution.
Hence, the tax is unconstitutional and null and void.
In an earlier case, challenging the constitutionality of
an income tax levied by the U.S. Congress during the Civ-
il War, the Supreme Court upheld the federal income tax
as an INDIRECT tax--an excise tax. This holding was re-
versed by the Court in POLLOCK V. FARMERS LOAN AND TRUST
COMPANY in 1895.
The Sixteenth Amendment put aside the question of whether
an income tax is a direct or indirect tax. The amendment
grants to Congress blanket authority "to lay and collect
taxes on incomes, FROM WHATEVER SOURCE DRRIVED," (1)
"WITHOUT APPORTIONMENT AMONG THE SEVERAL STATES" and (2)
"WITHOUT REGARD TO ANY CENSUS OR ENUMERATION."
The Enforcement Sections of Amendments 13, 14, 15, 19, 23, 24, & 26:
THIRTEENTH AMENDMENT: [Ratified in 1865.]
SECTION 1 (THe SUBSTANTIVE PROVISION):
"Neither slavery nor involuntary servitude, except as
a punishment for crime whereof the party shall have
been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction."
SECTION 2 (THE ENFORCEMENT SECTION):
"Congress shall have power to enforce this article by
appropriate legislation."
MEANING:
Section 2 delegates to Congress the power to
enact federal legislation enforcing the prohibi-
tions contained in Section 1 of the Thirteenth
Amendment--(1) the absolute ban against slavery
and (2) the conditional ban against involuntary
servitude. The CONDITIONAL BAN AGAINST INVOLUN-
TARY SERVITUDE: No involuntary servitude, except
as punishment for a crime of which the person has
been duly convicted.
FOURTEENTH AMENDMENT: [Ratified in 1868.]
SECTION 1 (THE MAIN SUBSTANTIVE PROVISION):
"All persons born or naturalized in the United States
and subject to the jurisdiction thereof, are citizens
of the United States and of the state wherein they
reside. No state shall make or enforce any law which
shall abridge the privileges or immunities [basic
rights and liberties] of citizens of the United
States; nor shall any state deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction
the equal protection of the laws."
SECTION 5 (THE ENFORCEMENT SECTION):
"The Congress shal have power to enforce, by appro-
priate legislation, the provisions of this article."
MEANING & SIGNIFICANCE:
Section 5 of the Fourteenth Amendment is the pri-
mary constitutional basis of federal civil rights
legislation.
Section 5 gives Congress the power to enact fed-
eral laws against STATE ACTION--
Depriving U.S. citizens of the basic rights
and liberties guaranteed to them by the U.S.
Constitution;
Depriving any person of life, liberty, or
property without due process of law;
Denying to any person within the state's
jurisdiction the equal protection of the
laws.
FIFTEENTH AMENDMENT: [Ratified in 1870.]
SECTION 1 (THE SUBSTANTATIVE PROVISION):
"The right of citizens of the United States to vote
shall not be denied or abridged by rhe United States
or by any state on account of race, color, or previ-
ous condition of servitude."
SECTION 2 (THE ENFORCEMENT SECTION):
"The Congress shall have power to enforce this arti-
cle by appropriate legislation."
MEANING & SIGNIFICANCE:
Section 2 of the Fifteenth Amendment is a major
constitutional basis of federal voting rights
legislation.
Section 2 grants Congress the authority to enact
legislation against state attempts to deny the
electoral franchise to particular U.S. citizens
on the basis of their racial identity.
NINETEENTH AMENDMENT: [Ratified in 1920.]
SECTION 1 (THE SUBSTANTIVE PROVISION):
"The right of citizens of the United States to vote
shall not be denied or abridged by the United States
or by any state on account of sex."
SECTION 2 (THE ENFORCEMENT SECTION):
"Congress shall have power to enforce this article by
appropriation."
MEANING:
Section 2 of the Nineteenth Amendment empowers
Congress to legislate against state attempts to
deny voting rights to particular U.S. citizens
on the basis of their gender.
TWENTY-THIRD AMENDMENT: [Ratified in 1961.]
SECTION 1 (THE SUBSTANTIVE PROVISION):
Gives the District of Columbia the right to choose
presidential electors and thereby participate in
presidential elections.
SECTION 2 (THE ENFORCEMENT SECTION):
"The Congress shall have power to enforce this arti-
cle by appropriate legislation."
MEANING:
Section 2 of the Twenty-third Amendment author-
izes Congress to enact legislation providing for
the election of presiodential electors by the
District of Columbia.
TWENTY-FOURTH AMENDMENT: [Ratified in 1964.]
SECTION 1 (THE SUBSTANTIVE PROVISION):
"The right of citizens of the United States to vote
in any primary or other election for President or
Vice President, for electors for President or Vice
President, or for Senator or Representative in Con-
gress, shall not be denied by the United States or by
any state by reason of failure to pay any poll tax or
other tax."
SECTION 2 (THE ENFORCEMENT SECTION):
"The Congress shall have power to enforce this arti-
cle by appropriate legislation."
MEANING & SIGNIFICANCE:
Section 2 of the Twenty-fourth Amendment is a
major constitutional basis of federal voting
rights legislation.
Section 2 gives Congress the power to legislate
against the states' requiring payment of poll
taxes or other taxes as a qualification for vot-
ing in federal elections.
TWENTY-SIXTH AMENDMENT [Ratified in 1971.]
SECTION 1 (THE SUBSTANTIVE PROVISION):
"The right of citizens of the United States, who are
eighteen years of age or older, to vote shall not be
denied or abridged by the United States or by any
state on account of age."
SECTION 2 (THE ENFORCEMENT SECTION):
"The Congress shall have power to enforce this arti-
cle by appropriate legislation."
MEANING & SIGNIFICANCE:
Section 2 of the Twenty-sixth Amendment is a
major constitutional basis of federal voting
rights legislation.
Section 2 empowers Congress to pass legislation
against state denial of the electoral suffrage
to 18, 19, and 20-year-old citizens who are
otherwise qualified, under state law, to vote in
elections.
Return to Page One, Unit Four,
MAJOR POLICYMAKING INSTITUTIONS
IN THE U.S. NATIONAL GOVERNMENT:
LEGISLATIVE, EXECUTIVE, & JUDICIAL
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