Blogging the Constitution: The Congress (Part II).

by Jezla

(Apologies for being late with this post…Spring has sprung in Indiana!)

Last time we looked at the structure of Congress; this time we’ll look its powers.

Article I, Section 8 lists 20 (by my count, some commentators count 17) powers of Congress.  This section provides the best evidence that the central government of the United States is meant to be limited in nature, with specific, enumerated powers.  If the government was intended to be sovereign and all-powerful, then this section and Section 9 would not even be in the Constitution.  However, over the years Congress has taken (with support from the courts) a very broad interpretation of some of these powers.

I won’t cover each power of Congress, but I do want to touch on some important ones.  Congress has the 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; 

The first power listed is that of generating revenue, along with a statement for which purposes Congress shall raise revenue.  The Constitution lists only two purposes: to pay the debts of the Union, and to provide for the common defence and general welfare of the Union.  There’s that tricky phrase ‘general welfare’ again.  As I said in a previous post, this does not mean that the government is supposed to make people prosper.  The phrase applies to the Union, meaning the States as a whole, not the people.

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes. 

This is the clause by which Congress has increasingly imposed its own will on the people, when it is actually a limited power.  The key word of this clause is ‘regulate.’  Modern readers usually think of regulating something as making rules for it, which is indeed one of the definitionsof regulate; however, it also means “to bring order, method, and uniformity to” something.  Andrew Napolitano uses this definition, and I will do the same.  Thus, Congress only has the ability to bring order and uniformity to commerce, not make rules regarding anything pertaining to commerce.  There are many bad laws and practices on the books today that use this clause as justification.  The speed limit?  According to Congress, States must enforce a Federally mandated speed-limit on all US highways or lose an allotment of Federal funds.  This does nothing to bring uniformity to interstate commerce (except slow it to a crawl in some instances), thus violating the Constitution. In addition, Congress does not have the power to blackmail States into doing its bidding by holding taxpayer funds hostage.  That infringes on States’ sovereignty.

To promote the progress of Science and useful Arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries;

This is the foundation for all copyright and patent law, which Congress should diligently protect.  Unfortunately, it’s doing the exact opposite.

To declare War, grant Letters of Marque and Reprisal, and make rules concerning captures on land and water;

This is one that Ron Paul has harped on this election season, and for once, I agree with him.  Congress has, for the last sixty years, abrogated its authority in this regard.  WWII is the last time Congress declared war; since then there have been weak authorizations to use military force.  Even the current ‘war’ in Iraq (which I support) is the result of Congress giving the President authority to use the military as he sees fit.  Given the hand-wringing by liberal and anti-war politicians in Congress, one would think that they’d be aware of their powers and responsibilities better.  If they don’t want war, then when the president asks to use the troops, they should demand that he request an official declaration of war, or they should deny him.  Note also the second part of the clause, regarding captures, and consider the debate over interrogation techniques.

Letters of Marque and Reprisal are archaic functions no longer in use today.  A Letter of Marque was, in effect, a legal authorization of piracy (so long as it was directed at the enemies of the issuer), and Reprisal allowed a response to an agressive act by a foreign power without general mobilization.

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Naturally, the legislative body should have the power to pass laws, right?  Take a closer look, though, at the qualifier, ‘foregoing powers, and all other powers vested by this Constitution…’  Once again we are reminded that the government is one of limited and defined powers, not limitless and undefined. 

In addition to these, Congress has the power to coin money, to establish a uniform rule of naturalization, to establish post offices and post roads, to raise an army and a navy, provide for organizing and calling forth the militias, and governing the nation’s capitol.

I want to make an observation about Congress’ power to raise an army and navy.  Section 8 says that Congress can raise and maintain an Army, but any appropriation of money for it is limited to two years.  Thus, if the government wants to maintain a standing army, the money for it has to be appropriated every two years.  This is because the Framers recognized the danger of a permanent army independent of the government.  History shows that tyrants have long attained power by subverting the military; the Roman Emperors did it (often it was the army that chose each successive emperor), and many others.  By placing a limit on the funding of the army, Congress has the power to quell any attempt by an individual to rally the army and take over the government.  Interestingly, there is no such limitation on the navy.  This makes sense because by nature a navy not only defends the country, it also projects our power wherever it goes; as such it is little threat to the government in the way that a land-based army is.

Next up: Yes, Virginia, there are limitations placed on Congress!