Wednesday, November 11, 2009

A More Perfect Union - Part I

"We, the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America." - Preamble to the US Constitution.

The Preamble to the Constitution grants no special powers either to the states, to the federal government, or to the people. Rather, it establishes the general purpose for the establishing a new form of government on the North American continent and gives some of the essential goals in establishing this brilliant plan of government. The Constitution itself is divided into various articles. Each of the articles deals with a particular area. There are seven articles and 27 amendments to the Constitution. This article discusses Article I - The Legislative Branch.

"All legislative powers shall be vested in a Congress of the United States, which consist of a Senate and a House of Representatives" Article I, Section 1. Congress has the sole power to legislate or to create new laws, although Congress has, over the years, increasingly allowed executive departments to create regulations which have the force of law. The courts have generally been tolerant of this, and in fact, in only three cases have they invalidated laws based on delegation of congressional authority. Congress, while having been given the authority to legislate, also has the authority to investigate what it can regulate. Congress has evolved the authority to subpoena witnesses and documents to assist it in its investigations. While many of these investigations seem to be political grandstanding, the courts have generally paid great deference to Congress' authority in this area and have rarely intervened. See: Barenblatt vs. US 360 US 109 (1959) "The power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate; it has similarly been utilized in determining what to appropriate from the national purse, or whether to appropriate"

Congress is composed of two houses: the Senate and the House of Representatives. The Senate is composed of two senators from every state, elected at large. (Note: Direct election of senators did not occur until the adoption of Amendment XVII in 1912.) The senate was set up to give a balancing to the larger states, whose members would otherwise overshadow the smaller states in the House of Representatives. Each house has the authority to determine its own rules and procedures, and they differ quite distinctly from each other. Debate in the House is much more regimented, with a rule being established prior to every debate that specifies the length of the debate, etc. Debate in the Senate has no time limit, and in fact, the practice of a filibuster is a way for the minority party to stall a bill in the hopes of defeating it, even if they don't have the votes to defeat it outright. While the Senate has two senators from every state, the Constitution directs that the House of Representatives be apportioned based on population, with each state guaranteed at least one member of the House of Representatives. This is especially important as the upcoming census approaches and each party will be trying to affect census data so to allow them to draw the districts for the House and therefore increase election chances for their party members.

Congress is granted certain exclusive powers. These include the power to declare war and make peace, to approve all treaties, to maintain an army and navy, to establish inferior courts to the Supreme Court, to levy taxes, to regulate commerce between the states and between foreign nations, and others. One important clause states that "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". Article I, Section 8. This is often called the expansion clause, because it is used as legal justification for doing almost anything.

The commerce clause is often used by Congress to enact a variety of legislation. However, a couple of recent cases indicate that the Supreme Court's willingness to allow Congress do as it pleases under the stretch of the commerce clause may be coming to an end. Specifically, the Court held in United States vs. Lopez 519 US 549 (1995) that Congress could not use the commerce clause to expand federal police powers over areas traditionally governed by the states. The Court, however, in Gonzales vs. Raich 545 US 1(2005) did not continue along this line, and while not expressly overruling its holding in Lopez supra, it did indicate that the Court's opinion on this clause is in flux.

Congress also has some limits. Congress may not pass a bill of attainter, nor may it suspend the writ of habeus corpus (with a few exceptions), and Congress may not grant titles of nobility. It also must only enact a direct tax by doing so based on proportionate taxation of the states. In practice, the income tax amendment of 1916 has superseded this section.

States are also limited in Article I. States may not enter into agreements with each other without the consent of congress, they may not keep armies or troops during times of peace, and they may not go to war unless actually invaded. More importantly, they must tax the imports of each state equally, and may not tax exports except to the point needed to carry out inspection laws. States may not impede the operation of a contract. States may forbid certain clauses in a contract, but not one that is currently operative.

Article I of the Constitution establishes considerable power for Congress, if Congress decides to exercise that power. In Part II of this series, I will discuss the Executive branch, and along with that discussion, the unique relationship that has evolved with Congress, including the limits and expansion of Executive power.



2 comments:

  1. ToE wrote:
    "States are also limited in Article I. States may not enter into agreements with each other without the consent of congress, they may not keep armies or troops during times of peace, and they may not go to war unless actually invaded."

    This makes it sound as if individual states under the right circumstances DO have the right to go to war / declare war.

    "More importantly, they must tax the imports of each state equally, and may not tax exports except to the point needed to carry out inspection laws. States may not impede the operation of a contract. States may forbid certain clauses in a contract, but not one that is currently operative."

    How does this track with the current UCC laws and regulations? DO some states allow contracts that others do not?

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  2. A state may not engage in warfare unless actually invaded. This is extremely unlikely, but in the early days of the republic was considered a possibility..i.e. Canada and the Spanish provinces to the west and south.

    The Uniform Commerce Code has been adopted in all 50 states, although Louisiana has exempted itself from Article 2 and retains its civil law structure relating to the sale of goods. The UCC has little to do with the import and export of goods and regulates the sale and conditions of sale of mostly personal (as opposed to real) property. Each state is free to allow or disallow different types of contracts. For instance, Nebraska does not allow an 18 year old person to enter into a contract and requires them to be 19. Most other states recognize 18. Some states, (Kansas for instance) do not allow a contract to require a renter to pay attorney's fees in the case of an eviction. However, this clause more importantly means that a state can not impede a contract which has already been signed and was legal at the time of signing. A state legislature could, however, legislate a contract or provision of a contract out of existence going forward.

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