Welcome back. We're in the middle of a conversation about the longest section of the longest article of the Constitution, Article 1, Section 8, which catalogs, enumerates the powers of Congress, the powers of Congress mainly vis a vis the states, addressing a Federalism question. How much can the central government do? How much should be left to the individual state governments? But also, in the process, talking about certain powers that, within the Federal government, Congress is going to have vis a vis other branches. So there's some separation of powers as well as Federalism dimensions to article 1, section 8, that we'll be talking about. We began by talking about the first sentence, a sentence that says Congress is going to be able to tax us, up and down and sideways. Taxes, duties imposed, and excises. Why? In order to pay the debts of the United States, promote general welfare, and especially provide for common defense. So we're going to need to pay for national security, And the Articles of Confederation did not do a good job of that. States were supposed to pay into continental coffers and they didn't do it. And there was no money and the till. The cupboard was bare. And George Washington and others understand that when the next war comes around, if that cupboard is bare, America is going to lose its independence. He doesn't know when and how that next war might arise. But he knows Washington does, and his allies, that America almost lost the Revolutionary War. It was they were very fortunate to have all sorts of help at key moments. And they can't count on that again. America's going to need to have the resources for national security. And that's going to require a government that has the power of taxation in order to be legitimate. That government, because it's going to be taxing individuals, it's going to have to be one in which individuals are represented, as they are in a house of representatives. Okay, what's the next power? Congress shall have power to borrow money on the credit of the United States. Why do you need to borrow money? You need to borrow money, in part, because in a war, when everything depends on it, you might need to borrow. And if you, and if people, and people aren't going to lend you money unless you can pay it back. And you can't pay it back unless you actually have a revenue source like taxation. So you see, begin to see how these things fit together. The next power, the power to reg-, Congress has power to regulate commerce with foreign nations, among the several states, and with the Indian tribes. This is basically a power of foreign affairs. It is a power to regulate trade with foreign nations, and with Indian tribes. But not just trade. I think if you read commerce narrowly it might suggest just trade. But commerce can be read more broadly to suggest all matters, affairs, transactions. So, does that mean that Congress can regulate all matters, all affairs, all transactions? No. All foreign affairs. That is, affairs with foreign nations. All Indian affairs. Affairs with the Indian tribes. All, interstate problems. Affairs, matter stuff, among the several states. So this is not unlimited plenary power. The idea is that if something is genuinely international, the federal government should handle it, not the individual states, if it involves foreign nations. If something is genuinely a matter of Indian affairs, the federal government should do that. Because you don't want individual states riling up the Indians, who might then start being in the way, not just with that state but with the other states. If something genuinely spills over across state lines, then that's the sort of thing where the federal government should regulate, because it's the government where people from all the states are represented. Now on, on this view of, of, of the matter, again Congress' power isn't unlimited. The question is, is it really interstate and inter, or international?, Or, is it really, something that affects, our relations with the Indians, our affairs with the Indians? If you had a narrower view, that commerce just means trade, economic stuff, stuff that travels through markets, then, it's not clear actually where there is a foreign affairs power in the Constitution. It's not clear where there's power to regulate navigation, which isn't itself, narrowly, trade. Immigration, people coming into the United States. If it's not in this clause I don't know quite, where it is. What about when people want to just travel from one state to another, maybe not to spend money, but just to travel. Shouldn't the federal government have power to regulate roadways and things like that, that really are about intercourse, interaction, among, commerce, in its broadest sense, among the states? And early on, Congress actually does pass a statute, a statute that makes it a crime for Americans to rile up the Indian tribes. And that's, even in non-economic ways. And if the commerce power is not the source of that statute, I don't know what is. It's not merely a statute implementing various treaties with the Indians. It's a statute dealing with tribes even with whom we have no treaties. So again, Congress' power, in this view, isn't unlimited and plenary. It's limited, but the basic idea is if something is really international or interstate, if it really spills over across a state border or a federal or a national border, that's when you want the federal government, rather than the individual states involved. Congress has power to establish a uniform rule of naturalization, and that's not about immigration narrowly, just people coming to the United States, say, to visit or something, but, but the power to actually make them citizens, citizens of the United States. That's the power given to the Federal Government. To pass uniform laws on the subject of, of, bankruptcies. So again to create kind of a, an, a, a free trading zone with people doing business across state lines having some interstate rules about debts debtors and creditors in a continental free market. So again this idea of things that might spill over across state lines. Congress has the power to coin money. You may say well, gee, doesn't that follow from just the power to regulate interstate commerce, that commerce might depend on a common currency, like the Euro in Europe today? So perhaps some of the provisions of Article 1, Section 8, perhaps didn't need to be specified. Maybe they were put in out of an abundance of caution. Some of them are also not just federalism provisions, to make clear that the federal government can, can do this vis a vis the states. But separation of powers ideas within the federal government. This is up to the legislature and not the executive. In England, for example, the power to coin money was a royal power, an executive power. And Article 1, Section 8, is making it clear that in America this is not given to the president but to the Congress. Of course, the President's going to be part of the law-making process with the veto. We'll talk about that in later weeks. So just some of the other powers that I think fit into our emerging story of, of national security and geo-strategy, of, of power, for example, to establish post offices, again, to knit the country together so that there can be correspondence north and south and east and west. A power to promote art and science by things like copyright laws. Again, you want to have uniform rules about that across the different states so that a book published in one state, we know what the rules are for reprinting it in other states. So we have kind of one common market with one set of intellectual property rules. A power to constitute tribunals inferior to the Supreme Court. Again, the separation of powers idea. In America, Presidents can't courts unilaterally. The legislature is going to decide how many lower courts there shall be for, for example. That's again a separation of powers idea. That here, that's not merely left to the executive branch to decide, for example, as it was in England, how many judges there would be and the like. Some big ones. Powers to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. Again, consistent with this idea that the federal government is being created for, for foreign affairs and national security purposes preeminently. Congress has power to declare war. And making clear that this is not a unilateral executive branch power, but Congress has an important role. Maybe certain wars might need to be fought in the event of an imminent invasion or something. It doesn't say, to just to make war, it says to declare war. So maybe if fighting has already broken out, maybe the President has unilateral power to repel invasions. That has been our tradition. But this power to declare war is a congressional power, not an executive power. And of course, it's a federal power, and not a state power. We don't want individual states picking fights with foreign nations, and deciding whether we're going to go to war against Germany or France or Japan or whatever. Some interesting provisions about armies and navies, power to raise and support an army, but no appropriation of money to that use shall be for a term, longer term than two years. To provide and maintain a navy, to make rules for the army and navy. National security, power to have a national army, a national navy. But note the difference between the army and the navy. The army has to be reauthorized every two years. So, what's up with that? But not the navy. What's up with that? It's a geo-strategic idea, that armies are more threatening to domestic liberty than navies, so armies have to be reauthorized every two years. Why every two years? Because there's a House election every two years. So, although bicameralism doesn't automatically mean you're going to get fewer laws, sometimes you get more laws and log rolls and things like that. Certain laws lapse. They sunset every two years. Army appropriations, every two years the army appropriation goes down to zero. It has to be affirmatively repassed by the House as well as the Senate, and then presented to the President. So, so, built into this is a certain bias against, our, an authorization of armies. We might need them, but a concern that if we need them they have to be continually reauthorized in any congressional election. If the people are tired of an army, they just in effect vote no, vote for members of the House of Representatives who are opposed to an army. All the House of Representatives has to do is do nothing at all. And sometimes those legislators in Congress, they're very good at doing nothing at all. But if they do nothing at all the army lapses every two years automatically. Not the navy, but the army. No standing appropriations for standing armies. A very interesting combination of sort of democracy and, and geo-strategic national security concerns. Wrapping up much of, of what's gone before is a general power. And then there's some rules about militias. I'm going to talk about militias in just a minute. and, the relation between the federal army and the, the local militias. but, the, there's a power of Congress to regulate a national capital, so that its not dependent doesn't have to be located in an individual state. But the national government can have its own capital city. And the national, and Congress can pass laws to regulate that capital city. And then at the very end of Article 1, Section 8, the longest section of the first and longest article, Is, sort of, a general, catch-all sentence. Congress shall have power to make all laws, which shall be necessary and proper for carrying into execution the foregoing powers, and all the other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. At least two dimensions here. There is a federalism dimension that, just a reminder that not all the powers are expressed and explicit. There's some implicit power basically to implement, to carry into execution, the foregoing, the other powers that we've just been talking about. So there's a little, some play in the joints. It's a Federalism reminder that not everything has to be express and explicit in empowering the new Congress, as it did have to be express and explicit in empowering the old Congress under the Articles of Confederation. So maybe one of the most important words in the clause that I just read to you is a word that's not there. Express, explicit. That was pointedly omitted from the sentence. so, that's a Federalism idea. Another Federalism idea is that federal laws have to be proper. so, no pretextual use of federal power. So, for example, could Congress use its power of copyrights to punish newspapers it didn't like? Say, well, only newspapers that support the administration will get copyright protection, but not critics of the administration. Use its power of taxation to go after critics. Only newspapers that oppose the administration will be taxed in a certain way when they try to ship newspapers from one state to another or something, but but pro-administration newspapers won't be taxed. Well, I would argue that that's an improper exercise of Federal power, and it's a violation of the necessary and proper clause that Federal power has to, be exercised consistent with the letter and spirit of the Constitution. This was an issue that had arisen with Britain. Britain tried to leverage certain powers that the colonists admitted it had, to regulate trade within the empire, and with other nations and empires. Parliament tried to use that as a way of raising internal, raising revenue. And the colonists said, no. We can see you can regulate foreign affairs for certain, security purposes, but we think you're misusing that power when you try to do that to, to, raise money for us. That's a pretextual use of a power given for other purposes. And the necessary and proper clause is a reminder that certain powers are given for certain purposes. And if they are used to do things that the Federal government really isn't supposed to be doing, there is an argument that they're unconstitutional. So that's the necessary and proper clause as a matter of federalism. As a matter of separation of powers, note that the necessary and proper clause really establishes that, in fact, Congress is first among equals, first among the three branches. It's mentioned first. And it really, it has power to, to pass laws, implementing, not just its own powers, but also regulating, to some extent, other powers vested by the Constitution. In the government of the United States, or in any department or office or thereof. It's Congress that decides, for example, how many cabinet officers there'll be and how to sort of divide things up among the cabinet officers, and how much the cabinet officers are going to be paid. It's Congress that decides how many courts there will be below the Supreme Court. Congress that decides by law the number of Supreme Court justices. Congress has the authority to decide what rules of procedure courts will use, and what rules of evidence they will use. Congress has a fair amount of power, not just to regulate itself, but to regulate the coordinate branches of the federal government. Now I'd be remiss in not mentioning maybe the most important early case ever decided under Article 1, Section 8, on the scope of Federal power. The case is McColloch vs Maryland, John Marshall, Chief Justice John Marshall in 1819, and he upheld Congress' power to pass, to create a national bank, even though it doesn't say bank in Article 1, Section 8. But a bank was adopted very early on, by the first Congress. And James Madison had some objections to it. But it passed nonetheless. And when the bank lapsed, actually, James Madison was President at the time, and he actually signed into law a new bank bill. And one of the reasons he did is that, it, the bank had been shown that it was actually very useful for national security. That it's quite useful, the money is the sinews of war, and having a central bank to borrow money on behalf of the United States and move money around to give to the troops. Very valuable power. And here's what John Marshall said when he upheld the bank. And I hope you hear in this a geo-strategic argument. He said and, and that quote, we need quote an army quote," To defend a vast republic from the Sanquaw to the Gulf of Mexico, from the Atlantic to the Pacific." Now he's already claiming in 1819 the Pacific, you know, California and Oregon. He's already dreaming this continental dream. Manifest destiny, the Monroe Doctrine. But what he said is, in order to pay troops on site and on time, a bank is pretty darn useful. To move money, from the North to the South, from the East to the West. Troops need to be paid on time. A geo-strategic argument for, a national security argument for the bank of the United States. Unanimous opinion by John Marshall all about, on behalf, interpreting article 1, section 8. Who's John Marshall? He's the guy who had been there at Valley Forge with George Washington. So, you see, again, the national security and geo-strategic thrust of Article 1, as a whole. Now I wanted just to say a couple of words about militias, and then conclude with a few more thoughts about the last provisions of Article 1. We have a federal army but that's permitted but it coexists with state militias to, and state militias are a kind of counter weight. They can keep check on a central government if and, and in the event, a federalist said if, if the federal government ever attempted a coup d'éta,t trying to use its an army to basically just declare martial law and suspend elections and free speech, local militias would be around to resist as local militias had resisted Parliament during the American Revolution. But, to be clear, this was a power only to be used in the event of blatant unconstitutionality, where the federal government cancelled elections, shut down courts, shut down free speech. so, ordinarily, if there's a dispute about what the federal government has done, whether it's acted properly or not, the solution is elections and free speech, and court cases. Not taking up arms against the, the central government, just because one state has decided that they think something is improper or unnecessary or unconstitutional. As we're going to see later on, in the 1860s, state militias actually misbehaved. They took up arms against a duly elected government, where there was complete freedom of speech and debate for their pro-slavery point of view, where courts were open and indeed controlled, generally, by pro-slavery forces, led by Chief Justice Roger Taney, a pro-slavery chief justice. So we're going to see, later on that this militia power, at the founding, which was reserved to the states, basically was abused. And we today live in a shadow not just of the Revolutionary War and the original Constitution, but the Civil War and its Amendments, which reflect a much more pro army vision of the world. Article 1 ends with some restrictions on Congress in Article 1, Section 9, and states in Article 1, Section 10. A lot of the restrictions on the states are in the name of national security. States can't raise armies on their own, can't keep warships on their own, can't send without con, Congressional consent, can't send troops into war, pick fights with foreign nations, can't enter into treaties with foreign nations. So consistent with this geo-strategic vision, certain foreign policy and military matters are given to the central government and not the states. But there are certain things that neither states nor the federal government can do, a kind of early version of a Bill of Rights. Neither states nor the federal government can pass ex post facto laws, or bills of attainders, or titles of nobility. So, in anticipation of an idea that there are certain things that no government should be allowed to do. Now, here's one thing, though, that's missing in general from Article 1. There's nothing in Article 1, Section 10, that says, no state shall allow slavery. There's nothing that says, no state shall allow slavery after 1808, or after 1876. There's no clause in the Constitution that says, Congress shall have power to eliminate slavery in the states. Those turn out to be very pointed omissions. We allowed, the framers allowed slavery not just to continue to exist, but to, to entrench itself, to expand, to flourish. And, as we're going to see in later chapters, eventually the consequence of that would be a civil war. In our next lectures we're going to talk about Article 2, the presidency. And we'll see, even there, the influence of slavery. And that's, of course, going to help us see, eventually, what will happen later in our story. Namely, the war between the states. The Civil War. So, stay tuned. [MUSIC]
