CONSTITUTION STUDY SESSION 3

Article I, Section 8
Saturday, April 24

ENUMERATED LEGISLATIVE POWERS

Paragraph 1 – Power to tax for “common defense and general welfare”.

Case 1: “United States v Butler” (1936) – opined that the only restriction on government spending was that it was for “general” welfare.

Madison in Federalist 41: “Nothing is more natural nor common than first to use a general phrase, particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity.”

[Challenge to the Agricultural Adjustment Act of 1933 that taxed food processors to pay farmers for reducing their production. Ruling overturned the act, but the obiter dicta became basis for Helvering v Davis. Was overturned on basis of the 10th amendment.]

Case 2: “Helvering v Davis” (1937) – court abandoned review of laws on the basis of general welfare clause, i.e., would no longer limit federal spending to enumerated powers. In this case, Davis challenged the Social Security Act on the basis of the 10th amendment. Court ruled that the Federal government was empowered to spend money for the “general welfare” and that Social Security was for the general good and was not restricted to the States.

Paragraph 2 – “To borrow money on the credit of the United States”.

George Washington (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 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.”

Paragraph 3 : “To regulate commerce with foreign nations, and among the several States …”.

Case 1: “Gibbons v Ogden” (1824) – A case concerning who gets license to operate in waters between States. Chief Justice Marshall stated, “This power [to regulate commerce among the several states], like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.”

Case 2: “Wickard v Filburn” (1942) – court ruled that all economic activity, since it might indirectly effect interstate commerce, may be regulated by Congress. In this case a farmer who produced more wheat than allowed by law solely for use on his own farm to feed his livestock was ruled to have broken

Key question: What does “commerce” mean?

Paragraph 4 – Uniform rules of naturalization

Paragraph 5 – Uniform bankruptcy laws

Paragraph 6 – Coin money and regulate its value

Case 1: “Knox v Lee” (1871) – Supreme court ruled that the Federal government could make paper money (bills of credit) legal tender.

Paragraph 7 – Fix standards of weights and measures

Paragraph 8 – Provide punishment for counterfeiting securities and the current coin of the United States

Paragraph 9 – Establishment of post offices and post roads

Paragraph 10 – Issuance of patents and copyrights

Paragraph 11 – Constitution of inferior Federal courts

Paragraph 12 – Define and punish piracy and offenses against the laws of nations.

Paragraph 13 – Power to declare war

Paragraph 14 – Power to grant letters of marque and reprisal

Reprisal: seizure of persons or property of a foreign state for the purpose of redressing an injury committed by that state Marque: reprisal

Paragraph 15 – Make rules concerning capture on land and water. Capture refers to the capture of enemy property.

Paragraph 16 – Raise and support armies, no appropriation for more than two years.

Paragraph 17 – Provide and maintain a navy

Paragraph 18 – Make rules for the government and regulations of the land and naval forces.

Paragraph 19 – Provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions.

Paragraph 20 – Provide for organizing, arming, and disciplining the militia and governing such part of them that are in the service of the United States.

Paragraph 21 – Power to exercise exclusive legislation over the seat of the government of the United States [Washington, D.C.]

Paragraph 22 – Power to exercise authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock- yards and other needful buildings

Paragraph 23 – Power 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.