Limits on Congress
As we have already seen in this series, the drafters of the U.S. Constitution were intent on creating a federal government with the authority to carry out its duties. Still, the experience of British rule -- and the abuses which had accompanied it -- were enough to guarantee that some limitations would also be imposed upon the power of the federal government in order to prevent a recurrence of those abuses.
The result is Section 9 of Article I, which sets out a number of restrictions on the power of Congress. The provisions of this section clearly indicate the founding fathers' desire for a nation unfettered by hindrances to both individual and commercial interests.
Particularly noteworthy is this section's ban on congressional approval of bills of attainder, ex post facto laws and measures suspending the writ of habeas corpus. Taken together, these clauses form a protection of personal freedom equaled only by the Bill of Rights.
Habeas corpus is a legal writ requiring a person to be brought before a judge or court for an investigation of the charges against him. A key component of our legal system today, this provision was included so that an unjustly imprisoned person could have the opportunity to win his freedom, rather than face charges without an opportunity to counter them. While this is the only mention of the writ of habeas corpus in the Constitution, it remains one of the most important safeguards of personal liberty within the American legal system.
This portion of the Constitution does, however, leave open the question of what authority has the power to suspend the writ, and what circumstances justify such action. In one of the earliest Supreme Court tests, Chief Justice John Marshall said that decision depends "on political considerations, on which the legislature is to decide."
This thinking was tested at the beginning of the Civil War, when President Abraham Lincoln authorized suspension of the writ along any military line between Philadelphia and Washington, D.C. A chorus of protests ensued, prompting Congress to act with hindsight in passing an 1863 act declaring, "That, during the present rebellion, the President of the United States, whenever, in his judgment, the public safety may require it, is authorized to suspend the privilege of the writ of habeas corpus in any case throughout the United States, or any part thereof.
The validity of this act, passed in the dark days of that emotional conflict, was upheld by the Supreme Court in a decision three years later. However, in that same case, a slim majority of the court declared that the suspension of the writ did not authorize anyone's arrest, but simply denied to an arrested party the privilege of the writ in order to gain his freedom.
Similarly, the Constitution forbids Congress from passing an ex post facto law; that is, any law which makes criminal an act which was not criminal when committed, or which inflicts a greater punishment than when the crime was committed. Abuses of this sort had been commonplace in colonial days, as the British manipulated the laws to suit their own needs.
Another early Supreme Court case, Calder v. Bell (1798), established that the ban on ex post facto laws applied only to penal and criminal statutes. Nearly a century later, the court ruled in Burgess v. Salmon (1878) that the ban could not be circumvented by giving a civil form to a measure which is essentially criminal in nature.
Likewise, Congress is prohibited from passing a bill of attainder -- a legislative act which punishes a person without a trial and prohibits that person from inheriting or bequeathing property.
For all their expressed concern with these personal rights, and a desire to keep a tight rein upon potential congressional action in these areas, the drafters' failure to include a ban on the importation of slaves remains a curious historical oddity. Indeed, this section contains a clause preventing Congress from ending the importation of slaves prior to 1808.
Certainly a product of the delicate series of compromises and concessions which marked the constitutional convention, the Constitution’s failure to prohibit slavery was crucial in the development of this nation’s history of racial strife, including events leading to the Civil War. Taken together with the document’s later requirement that escaped slaves be returned to their masters (found in Article IV, Section 1), The Supreme Court ruled in Scott v. v. Sandford (1857) that slaves and their descendants were not included within the term “citizen” as used in the Constitution.
While reiterating Congress' inability to lay any direct tax without apportionment among the states, the Constitution also addresses several other matters related to taxes and duties. The ban against congressional levying of duties or taxes on vessels bound from one state to another applies only to duties levied on goods by mere reason of their exportation. For example, a general tax laid on all property -- including but not restricted to exports -- is not covered under this protection.
Congress is also prohibited from giving preference to the ports of one state over those of another state through regulations of commerce. This clause of the Constitution does not, however, protect against such discriminations as between individual ports. Through the commerce clause, Congress may do any number of things, including establishing ports of entry, building and operating lighthouses, improving rivers and harbors, and providing structures for the handling of traffic. However, all such benefits must be based upon the relative merits of one port versus another -- not because one port lies within a particular state.
An additional safeguard of the people's rights protects the financial resources of the United States through a ban on the withdrawal of any money from the U.S. Treasury without a congressional appropriation. In point of fact, this provision is a limitation upon the power of the President and other national officers of the United States to earmark funds for particular purposes. That authority rests solely in the discretion of Congress through appropriate legislation.
In fact, when Congress directs a specific sum to be paid to a certain person in payment of an equitable, moral or honorary claim, no one -- not the Secretary of the Treasury or any court -- has the power to determine if that person is entitled to receive the allocation. The Supreme Court has ruled that Congress has wide discretion as to its frequent practice of making general appropriations of large amounts of money, with the manner of its expenditure to be determined by a designated government agency. In a 1937 case, Cincinnati Soap Co. v. U.S., the Supreme Court said, "The constitutionality of this delegation of authority has never been seriously questioned."
The trappings of nobility, so recently seen under the British experience, also concerned the drafters of the Constitution. The result was yet another portion of Section 9 forbidding the granting of any title of nobility by the United States, and barring any officeholder from accepting a foreign gift, office or title without the consent of Congress.
Congress has, from time to time, made exceptions to this general rule, such as permitting members of the nation's armed forces to receive foreign decorations. Still, this clause is seen today, as it was in 1787, as an important safeguard against undue foreign influence upon our government.
An 1871 opinion of the U.S. Attorney General amplified this clause, when it ruled: "A minister of the United States abroad is not prohibited by the Constitution from rendering a friendly service to a foreign power, even that of negotiating a treaty for it, provided he does not become an official of that power . . . but the acceptance of a formal commission . . . creates an official relation between the individual thus commissioned and the government which in this way accredits him as its representative" in violation of the Constitution.
The intricate "give and take" provisions of the Constitution as it relates to the power of the national government were viewed by our founding fathers as crucial to the establishment of both a functioning nation and a doctrine of individual rights. Only by granting some powers, and prohibiting others, did the Constitution maintain the founders' goal: the creation of a government which balances the interests of society against those of the individual.