Overview of Limits on State Power
Article 1, Section 10 places certain specified restrictions upon the state governments. In a way, this section delegates power to the federal government to prevent states from exercising powers prohibited by this section of the Constitution. In other words, Article 1, Section 10 empowers the federal government to impose certain limits on state power.
Think back to how the Constitution is like a partnership agreement. Pretend our partnership agreement is a “Homeowner’s Association Agreement.” Under this agreement, homeowners would be the partners and the Homeowner’s Association would be the agent with delegated authority. The Homeowner’s Association Agreement would have provisions, agreed to by the homeowners, that loud noise before 8am or after 10pm would be prohibited. As such, the Homeowner’s Association (the agent) would be authorized to enforce these restrictions upon the homeowners. That’s the conceptual framework under Article 1, Section 10. This section delegates power to the federal government to impose these explicit and agreed to restrictions upon the states.
It’s worth noting Article 1, Section 9 and Article 1, Section 10 both prohibit Bills of Attainder and Ex Post Facto laws. Section 9 is expressed in general terms, which means the prohibition applies against the federal government. Section 9 limits Federal Power. Section 10 says, “No state shall,” which means the prohibition applies against the states. Section 10 limits state power. This is a very important distinction to note when understanding the logic and meaning of the Constitution. Unless the Constitutional provision says, “No State shall,” the provision only applies to the federal government. No single provision in the Constitution applies against both the federal government and the state governments.
Detail – Article 1, Section 10 and Limits on State Power
The first clause prohibits the states from entering into treaties or alliances with any foreign countries. It also prevents the states from granting letters of marque and reprisal. Letters of marque and reprisal are generally warrants issued by a government to someone, like a bounty hunter, to either kill or apprehend an individual or group of people. These restrictions are meant place matters of “foreign policy” solely within the hands of the federal government. Internally, the United States was intended to be a patchwork of different states or countries. Externally, the United States was intended to have one uniform face – that of the federal government. The first clause also prohibited states from creating their own coins and issuing paper debt notes (i.e., bills of credit) like today’s Federal Reserve Notes.
This first clause also imposes a restriction that no state can make anything but gold and silver coin legal tender. It sounds strange to people today, but the Constitution mandates the people of each state to pay their taxes and consummate business transactions in gold or silver coin. This power has been ignored since FDR assumed the powers of a dictator in 1933 and confiscated all privately held gold in the United States. FDR’s gold confiscation was even more egregious because his executive order nullified all gold clauses in public and private contracts in violation of the Contracts Clause, mentioned below.
The first clause also contains what is known as the Contract Clause, prohibiting states from impairing the obligation of contracts. For more on this critically important provision, click here.
Clauses Two and Three
The second and third clauses discuss areas where states may act, but only with the consent of Congress.
The second clause prevents states from laying taxes on imports or exports without Congress’ consent, and monies raised may only be used to cover the costs of executing the state’s inspection laws. Any extra monies raised through these taxes go to the United States Treasury.
The third clause prevents states from entering into agreements with other states, or maintaining troops and warships during peacetime, without the consent of Congress. In addition, Duties of tonnage (taxes imposed on ships entering or leaving port based on the weight of the ship) may only be imposed with the permission of Congress. The other limitation on state power prevents a state from going to war without Congress’ consent, unless the state has been attacked or is in imminent danger of being attacked.
United States Constitution – Article 1, 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 anything 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 it’s 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 control 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.