Constitution Series Part 12: Article I, Section 9, Clauses 3 to 5

In continuing our exploration of the limitations placed on Congress by the Constitution, heads up that we're about to run head-first into some jargon. I'll do my best to explain it, but I'm no lawyer, so if you see me trying to explain something incorrectly, please correct me!

ARTICLE I

Section 9

No Bill of Attainder or ex post facto Law shall be passed.

This clause extremely straightforward, if you know what a bill of attainder and an ex post facto law are. These ideas haven't come up much in my daily life so far, though, so I imagine most people aren't that familiar with them.

A bill of attainder is a law that allows a person or group of people to be punished (generally for being suspected of committing a crime of some sort) without the need for a trial. In short, it's a government-sanctioned witch-hunt. A bill of attainder specifies the punishment, which can be anything from denying people the right to own property to summary execution. In short, it's the United State's defense against allowing a Holocaust.

That said, I don't think we've always adhered to this law very well. It did not, for instance, stop the United States from placing Japanese-Americans into internment camps during World War II. In fact, several decades later the United States government was found guilty of discrimination for that affair, and President Ronald Reagan signed an order in 1988 to pay reparations to the surviving people who were interred during that time. It is nice to know, though, that the government is held liable when it breaks its own laws.

The other limitation in this clause regards ex post facto laws. Ex post facto means "after the fact," meaning a law that applies to actions that weren't crimes before the law was passed, but which are illegal after the law was passed. In short, this limitation means that you can not be charged for a crime if it wasn't illegal when you committed that crime.

This clause, as a whole, was put together to fight tyranny in general and England's brand of tyranny specifically, as England used both bills of attainder and ex post facto laws at the time, abusing them to keep the people in line.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

This clause uses jargon that it's not entirely clear even the Convention understood. Capitation was understood: that's a flat tax per person. But what exactly is a direct tax? At the Convention, apparently Rufus King, a delegate from Massachusetts, asked for a precise meaning of the term, and nobody answered him.

Given that, we have to simply go by what it was taken to mean. After some debate on the subject after the Constitution was ratified, it was decided that "direct tax" meant only two things: capitation (as stated explicitly) and land tax. For those types of tax, meeting the requirements set by this clause (being based on the census "or enumeration herein") proved to be difficult, and Congress only occasionally passed these sorts of taxes.

I'm not entirely sure what about "proportion to the census" makes such a tax difficult to implement (isn't capitation naturally in proportion to the census?), and further reading on the subject hasn't made it much more clear.

Anyway, because of this difficulty, the United States relied heavily on things that were not "direct taxes;" in short, literally any tax that was not capitation or land taxes. Mostly, this was a tax on goods and services and, eventually, taxes on personal income.

Eventually, however, the Supreme Court decided that income tax was also a "direct tax," but we'll get to that in the 16th Amendment.

No Tax or Duty shall be laid on Articles exported from any State.

In order to support the United States as a manufacturer of goods, this clause prevents Congress from taxing any exports from the country.

This clause was fought for by the southern states especially, as the section of the United States with the most goods to export due to their agriculture. Debate was heated about this clause, however, and some of the biggest names at the convention opposed this clause, including James Madison and George Washington, who were both delegates from the South.

The argument for the clause was that it would be a tax that unfairly targets the most productive states in the nation. The argument against was that this disproportionate taxation would match the disproportionate use of the navy to protect those trade ships carrying the exported goods. However, eventually the South won out, and we still don't charge export taxes to this day.

Continue to Part 13: Article I, Section 9, Clauses 6 to 8