Thursday, April 7, 2016

Constitution Series Part 6: Article I, Section 8, Clauses 1 to 3

Do you want to know what, exactly, Congress is allowed to make laws about? They can't simply make laws about whatever they want, after all. The Bill of Rights will detail the things that Congress is expressly not allowed to make laws about, but here we'll see what Congress is explicitly allowed to do:


Section 8

This section consists of a long list of short clauses, but each one presents its own challenges regarding their purpose and scope. We'll take them one at a time, starting with arguably Congress's most important power:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
Congress can levy taxes on the nation. We kind of went over this already in Section 7, but that clause only said that the House of Representatives could propose bills to "raise revenue." Technically, the government under the Articles of Confederation allowed its legislature to "raise revenue" as well. However, it couldn't tax the citizens directly.  Rather, it taxed the state governments, who were able to give as little or as much as they were able. However, the states were rarely willing to give much, and some simply didn't give at all, and the legislature couldn't do anything about it.

Not so here. This Congress is explicitly allowed to impose taxes on its citizens, so long as the taxes imposed are uniform across the country (no taxing New York citizens more than Mississippi citizens, for instance).

Naturally, this is an extremely contentious line in the Constitution. Because, sure, Congress can tax its citizens, but to what end? "The common Defence and general Welfare of the United States," apparently, which is not a straightforward limitation.

Okay, sure, the "common Defence" part is pretty straightforward. Armies, navies, long-range nuclear missiles, these are all things that Congress can clearly tax people for.

But "the general Welfare?" What does that mean? According to Alexander Hamilton, that meant "whatever Congress thinks it should mean." So long as the money goes toward improving the nation, it's all fair game. This was the stance of the Federalists.

The Democratic-Republicans disagreed. In fact, this was the point of contention between the Federalists and the Democratic-Republicans. Thomas Jefferson and James Madison argued that Congress could only tax and spend toward things they're explicitly allowed to spend on according to the Constitution. And, given that John Adams was the only Federalist President and served only one term, it seemed the Democratic-Republicans won this debate.

In fact, it wasn't until fairly recently that Congress was really allowed to spend money on things like roads, education, and welfare as we know it. Some Presidents were more strict about it than others, but real change didn't begin until the era of FDR's New Deal in the 1930s. Thus began the era of the "tax and spend" Democrats, though the Republicans also had no problem with these new powers (see: the Eisenhower Interstate System). So, though Thomas Jefferson won that ideological battle for a long time, it seems like Alexander Hamilton's interpretation won out in the end. And I don't think we'll be going back any time soon.

The uniformity of taxes is another potentially long discussion. For instance, if there was a tax on agriculture, is that a uniform tax? A case could be made that such a tax would affect agricultural states more than non-agricultural states. However, this clause hasn't been that heavily contested through the years, so it seems the ambiguity of this part of the clause has resulted in a common understanding, more or less.
To borrow Money on the credit of the United States;
The United States didn't have much credit until Hamilton established the National Bank, but once he did Congress was allowed to borrow money for... well, the same purposes as above: "the common Defence and the general Welfare." However, the idea was specifically to only borrow for military purposes. Borrow when at war, repay our debts when at peace. That was the idea.

Here's what George Washington has to say about the debt in his Farewell Address: "As a very important source of strength and security, cherish public credit. One method of preserving it is to use it as sparingly as possible: avoiding occasions of expense by cultivating peace, but remembering also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it; avoiding likewise the accumulation of debt, not only by shunning occasions of expense, but by vigorous exertions in time of peace to discharge the debts which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burden which we ourselves ought to bear."

Since the beginning of our country, the national debt has been paid off... once. In 1835, during the presidency of Andrew Jackson. Perhaps that's why he's on the $20 bill despite his attempts to actively destroy the national bank, his hatred of paper money, and his genocidal tendencies.

Regardless, in short, we haven't done the best job of paying off our debts. We also haven't done the best job of staying out of wars. George Washington would be disappointed. Then again, we're still going after two centuries, so I suppose we're doing something right.
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
The states are not allowed to enter into deals with foreign nations. Period. This is the sole providence of the federal government. There wasn't a lot of contention on this issue, even from opponents of the Constitution.

States also have no jurisdiction over commerce with Native American tribes. In this way, the tribes are treated as any other nation.

The big point of contention in this clause is the "among the several States" part. What does regulating commerce among the states mean? On the surface, it seems to simply mean interstate commerce, and it certainly encompasses that. However, that key word "among" suggests more than simply regulating commerce between the states. Otherwise, the phrase would read "between the several States." "Among" suggests that Congress can regulate commerce within states; a point hotly contested, but which the federal government has won out on time and again.

Through this clause, Congress has enacted child labor laws, a minimum wage, civil rights legislation, the Environmental Protection Agency, the Food and Drug Administration, and countless other laws and regulatory bodies. In short, this clause is powerful. And it's the single most contested clause in the entire Constitution. In fact, I'm pretty sure I could do another entire series on just the ways in which this clause has been used over the years.

Continue to Part 7: Article I, Section 8, Clauses 4 and 5

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