Overview of Limits on Federal Power
Article 1, Section 9 imposes certain explicit limits on the powers of Congress. These limits on federal power only apply to the federal government. It’s important to note, this section is functionally identical to the federal Bill of Rights.
For example, where in Article 1, Section 8 (the delegated, Enumerated Powers of Congress), does Congress have the power to pass a Bill of Attainder or Ex Post Facto law? Congress does not have either power, but these explicit restrictions in Article 1, Section 9 were added to provide additional, explicit limits on federal power.
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 9 and Limits on Federal Power
Article 1, Section 9 imposes limits on federal power exercised under Article 1, Section 8.
The first clause limiting federal power prevents Congress from passing any laws banning the importation of slaves prior to 1808.
The second clause limiting federal power is the prohibition of suspending the writ of habeas corpus, except in extraordinary circumstances. The writ of habeas corpus guarantees those accused of crimes the right to face a judge to challenge their imprisonment. The writ of habeas corpus is meant to prevent authorities from arresting people without probable cause and holding them indefinitely. This power to suspend the writ of habeas corpus is vested with Congress because this provision is in Article 1. For some ugly American history on suspending the writ of habeas corpus, read Ex Parte Merryman. During the “Civil War,” Abraham Lincoln unilaterally suspended the writ of habeas corpus in various parts of Maryland. Chief Justice of the Supreme Court, Roger Taney, issued an opinion declaring Lincoln’s suspension of the writ of habeas corpus unconstitutional because the power to suspend the writ was vested with Congress, not the President. Abraham Lincoln responded by issuing a warrant for Roger Taney’s arrest.
Additional limits on federal power include prohibitions on Bills of Attainder and Ex Post Facto laws. Bills of Attainder are laws which target individuals or groups and declare them guilty without trial. Ex Post Facto laws change the legal consequences of actions that occurred before the law was passed.
The fourth clause prohibits Congress from passing a direct tax without apportioning the tax among the states. For more on direct federal taxes and apportionment, click here.
The fifth clause, limiting federal power, prohibits Congressional taxes on goods leaving any state.
The sixth clause prohibits Congress, in exercising its Commerce Clause power, from favoring the shipping ports of any state over the shipping ports of another state.
The seventh clause requires a regular accounting of federal money spent, and this accounting must be periodically published to the general public.
The final clause, limiting federal power, prohibits Congress from granting Titles of Nobility. Great Britain has Sir Paul McCartney. In the United States, Congress cannot bestow the title, Sir Bruce Springsteen. And Americans holding public office cannot accept foreign Titles of Nobility without Congressional approval.
United States Constitution – Article 1, Section 9
The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
No bill of attainder or ex post facto Law shall be passed.
No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.
No tax or duty shall be laid on articles exported from any state.
No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another.
No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.
No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
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