Monday, January 9, 2017

The most controversial part of the original Constitution was … a LIST



"The essence of Government is power; and power lodged as it must be, in human hands, will ever be liable to abuse."

- James Madison, in his Speech to the Virginia Convention on December 2, 1829

When the Founding Fathers were writing the Constitution in 1787, they attempted to list some of the powers that would be granted to the Congress. They knew that this list of powers was going to come under heavy fire when the document became public, and their opponents were sure to be up in arms about how much power they were proposing to grant to the federal government. (And this, as it turned out, is exactly what happened.)


Constitution of the United States

What was it about this list of powers that generated so much controversy during the struggle for ratification? Let us examine it below:


In Article 1, Section 8 of the Constitution; it says that:

"The Congress shall have the power:

1. 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:


Headquarters of the Internal Revenue Service, or "IRS"

2. To borrow money on the credit of the United States:


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

4. To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States:


Immigrants arriving at Ellis Island, 1902

5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures:


6. To provide for the punishment of counterfeiting the securities and current coin of the United States:


7. To establish post-offices and post-roads:


Expansion of the Interstate Highway System (1972)

8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries:


Headquarters of the U. S. Patent and Trademark Office

9. To constitute tribunals inferior to the supreme court:


United States Court of Appeals for the Ninth Circuit (California),
one of the most influential appeals courts

10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations:


USS Philadelphia burning after a confrontation with the Barbary Pirates

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:


FDR asks Congress to declare war after Pearl Harbor (1941)

12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years:


American troops approaching Omaha Beach on D-Day - Normandy, France (1944)

13. To provide and maintain a navy:


Aircraft carrier USS Yorktown at Pearl Harbor, just days before it saw action at the Battle of Midway (1942)

14. To make rules for the government and regulation of the land and naval forces:


The Pentagon, headquarters of the Department of Defense

15. To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions:


George Washington (then-President of the United States) reviews the troops
before they go to suppress the "Whiskey Rebellion" - circa 1791-1794

16. To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress:


National Guard troops patrolling Los Angeles, after the Rodney King riots of 1992

17. To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings: And,


Washington, D. C. (Lincoln Memorial)

18. 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."

(Source: Article 1, Section 8 of the Constitution)


United States Capitol

That last clause was the most controversial one, incidentally, because some at the time found it "too vague" about how much power would be granted to the Congress. Regardless of what one thinks of this list, it has been a major source of Congressional powers in the 200 years since that time; and all of the powers found on that list are still possessed by the Congress today.


Capitol Dome at night

Thus, this list continues to be a source of controversy. However, the debates are no longer about whether it should be a part of the Constitution (since it already is now), but about how our society should interpret it - since this all-important list it is now a part of the nation's supreme laws, and these debates over how to interpret it aren't just "hypothetical" anymore.



Whatever your feelings about this list, it is clear that the powers possessed by the Congress in practice are considerable; and the decisions that we make in the Congressional elections will have an enormous impact on things to come. With that being said, my next post in this series is about the limits on government - and specifically, the limits on Congress. (More on that subject here.)

Footnote to this blog post:

Thomas Jefferson once said that "One hundred and seventy-three despots would surely be as oppressive as one." (Source: "Notes on the State of Virginia," as quoted by James Madison in Federalist No. 48)

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Part of a series about
The Constitution

Influences on the Constitution

Hobbes and Locke: Anarchy, social contract theory, and unalienable rights
The Declaration of Independence (July 4, 1776): Philosophically important
Public and private property: When can you take away someone's private property as taxes?
Representative government: The advantages of a republic over a direct democracy
Baron de Montesquieu: Theory of separation of powers and checks & balances

The Constitution itself, and the story behind it

Convention at Philadelphia: The writing of the Constitution (1787)
States' rights: The conflict between the "several states" and the federal government
The Congress: Its power to make laws, and the president's power to veto them (in some cases)
Congress versus the president: Five limits on presidential power (besides impeachment)
Powers of Congress: A few reasons why the Congressional elections are so important
Elected officials: A few ways that the Constitution keeps our politicians under control
Frequency of elections: So how long do all of these people serve, anyway?
Representation: So who decides how many votes each state gets?
Slavery: The complicated legacy of the "Three-Fifths Clause"
The presidency: Making decisions for the police, military, and foreign diplomacy
Impeachment and removal: The most dramatic checks upon the power of presidents
The courts: "Good behaviour," some important judicial powers, and how they're appointed
Miscellaneous: Amendment process, "supreme law of the land," and some closing remarks

Debates over the Constitution, then and since

Debates over ratification: Whether to adopt the Constitution in the first place
The "Federalist Papers": Frequently asked questions about them, and why they're important
Who is "Publius"?: The secret pen name of the men who wrote the Federalist Papers
Debates over checks & balances: Do they actually conflict with separation of powers?
The Bill of Rights: Important in the debates over ratification (adopted 1791)
The First Amendment: Debates over freedom of religion, and public "establishment" of religion
The First Amendment: Freedom of speech, freedom of the press, and peaceable assemblies
Rights to fair trial: Judicial restraints on the power of the police and the president
Rights of the accused: The balance between individual protections and criminal justice
Congressional pay: The amendment that never made it into the Bill of Rights
Abolishing slavery: The things that led up to the famous antislavery amendment
Backup plans: Vacancy, disability, and presidential elections without a clear majority
Voting rights: Some important amendments about who is allowed to vote in this country

Epilogue: Some thoughts about civics education

← Previous page: Congress versus the president - Next page: Elected officials →


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