Saturday, April 16, 2016

Constitution Series Part 14: Article I, Section 10

Article I of the United States Constitution is ostensibly about Congress, but in fact it touches on every branch of the government, as well as governments below the national level. It's due to this scope and laying down the foundations of what's to be expected of our government as a whole that Article I takes up approximately 50% of the entire Constitution. The rest just kind of builds upon the groundwork laid by Article I.

Section 10 in particular focuses on limitations placed upon the states. Some are absolute limitations, while others require Congressional approval to circumvent. I assume it's these Congressional consent clauses that make these limitations appropriate for Article I.


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 any Thing 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.
This clause takes several of the rights and limitations of Congress and explicitly denies them to states.

For instance, only Congress can form diplomatic relations with other countries, retaliate for attacks, or create money. States are denied these rights. This consolidation of diplomatic power was somewhat new, as the states were allowed to form diplomatic relations with other countries with Congressional consent under the Articles of Confederation. In the end, there was very little disagreement on this front, as the benefits of consolidating this power was fairly obvious.

The states were also prohibited from creating money, including non-gold- or silver-backed paper money. This was another repeal of the rights states had under the Articles, and it met with some controversy. Rhode Island in particular was fond of its money system, and it was the prospect of monetary reform that stopped them from sending delegates to the Constitutional Convention. Considering that the result was having no say in the makeup of the Constitution, this may not have been the most prudent move. So it's no big surprise that Rhode Island was the last state to ratify the Constitution, and then only when they were promised a Bill of Rights.

Continuing these absolute limitations, states can not use any of those instruments of tyranny that are denied to the federal government: specifically titles of nobility, bills of attainder and ex post facto laws. Apparently, though, this only applied to criminal ex post facto laws. Civil ex post facto laws were and largely (see the 5th Amendment) are still legal.

The clause also prohibits states from interfering with contracts, which was intended to unify contract law around the country. However, by their very nature, contracts are hard to pin down with any language. In their quest for absolute clarity, contracts manage to be absolutely impenetrable to many people who otherwise believe they have a firm grasp of the English language. This predilection for contradiction extends to this clause in the Constitution. Over time, this contract part of the clause has been so thoroughly circumvented that it has become effectively meaningless even without an amendment to nullify it. Thus is the power of lawyers.
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 Controul of the Congress.
Here, Congress asserts its control over trade. In effect, only Congress can tax foreign imports, and nobody can tax exports. And, even if Congress does allow a state to impose a duty, all of the revenue from that duty goes to the federal government anyway, making it singularly useless to a state.

The big argument about this clause is about whether or not this means states can impose duties on interstate commerce. This question has swung back and forth between applying this clause to interstate commerce and not doing so. This was debated and changed as recently as 1997, when the pendulum swung back toward applying it to interstate commerce again.
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.
Finally, yet again Congress asserts its dominance over foreign relations by preventing states from going to war or keeping an army or navy during times of peace. This clause also restricts states from interfering with one another via "agreement or compact," which reinforces Congress's dominion over interstate relations and conflict. The juxtaposition of these two ideas (limiting state armed forces and interstate relations) suggests that the concern was of states making war against each other, which obviously needed to be avoided.

I'm not entirely certain what the "duty of tonnage" part is doing in this clause. It seems more appropriate for the previous clause, which dealt a lot more with trade.

Continue to Part 15: Article II, Section 1, Clauses 1 to 4

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