Studies in Civics

by J. T. McCleary

CHAPTER XXII.

SECTION VIII.—POWERS VESTED IN CONGRESS.

Clause 1.—Taxation.

Congress shall have power:

To lay and collect taxes[1], duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States;[2] but all duties, imposts and excises shall be uniform throughout the United States.[3]

For discussion of methods of taxation, see page 316.

[1] The want of power in congress to impose taxes was, perhaps, the greatest defect of the articles of confederation; therefore in the constitution this was the first power granted to congress.

[2] As usually interpreted, the phrase beginning, "to pay the debts," is intended to state the purposes for which taxes may be levied. But this limitation is merely theoretical, for taxes are levied before being expended.

[3] This is to prevent legislation in favor of any state or section, as against other states or sections.

Clause 2.—Borrowing.

To borrow money on the credit of the United States.

It should not be necessary, ordinarily, for congress to exercise this power. But in times of war the regular sources of income may not be sufficient, hence the necessity of this power to provide for extraordinary expenses. It is one of the prerogatives of sovereignty; it is indispensable to the existence of a nation.

For more about national borrowing, see page 317.

Clause 3.—Regulation of Commerce.

To regulate commerce[1] with foreign nations, and among the several states,[2] and with the Indian tribes.[3]

[1] The power to regulate commerce implies the power to prescribe rules for traffic and navigation, and to do such things as are necessary to render them safe. It has been interpreted to cover, among other things, the imposition of duties, the designation of ports of entry, the removal of obstructions in bays and rivers, the establishment and maintenance of buoys and lighthouses, and legislation governing pilotage, salvage from wrecks, maritime insurance, and the privileges of American and foreign ships.

[2] The power to regulate commerce with foreign nations should go hand in hand with that of regulating commerce among the states. This power had, under the confederation, been in the hands of the several states. Their jealousies and rivalries had led to retaliatory measures upon each other. This condition of affairs was encouraged by other nations, because they profited by it. At the time of the adoption of the constitution, business was terribly depressed, and the bitterness of feeling among the states would probably soon have disrupted the Union. Therefore, "to insure domestic tranquility," and "to promote the general welfare," the power to regulate commerce was delegated to the general government.

[3] This control is exercised even when the Indians live within the boundaries of a state.

By placing the power to regulate commerce with Indians in the hands of the general government it was hoped that uniformity of regulations and the strength of the government would secure peace and safety to the frontier states.

Clause 4.—Naturalization and Bankruptcy.

To establish a uniform rule of naturalization[1] and uniform laws on the subject of bankruptcies[2] throughout the United States.

[1] Naturalization is the process by which an alien becomes a citizen. The mode is given on page 319.

[2] A bankrupt is one who has been declared by a court to be owing more than he can pay.

The purposes of a bankrupt law are:

1. To secure an equitable distribution of all the debtor's property among the creditors.

2. To secure to the debtor a complete discharge from the indebtedness.

Clause 5.—Coinage and Measures.

To coin money,[1] regulate the value thereof[2] and of foreign coin,[3] and fix the standard of weights and measures.[4]

[1] This is another "sovereign power," and cannot be exercised by states, counties or cities. Coinage by the United States secures uniformity in value, and thereby facilitates business.

To "coin money" is simply to stamp upon a precious metal the value of the given piece. [Footnote: When metals were first used as money, they were weighed and their purity was determined by testing. This invited fraud.] For convenience in business transactions, these are coined of certain sizes. To discourage the mutilation of coins for sinister purposes, they are "milled" on the edges, and the stamp covers each face so that the metal could hardly be cut off without the coin showing defacement.

[2] The value is shown by the stamp.

[3] Otherwise, foreign coin would become an article of commerce, and it would be more difficult to regulate the value of domestic coin.

[4] This power congress has never exercised. But see Johnson's Cyclopedia, article Gallon.

Clause 6.—Punishment of Counterfeiting.

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

This is "an indispensable appendage" of the power granted in the preceding clause, that of coining money.

To discourage counterfeiting, the "securities" are engraved with rare skill and upon peculiar paper. The penalties for counterfeiting are printed on the back of some of the "greenbacks."

Under "securities" are included bonds, coupons, national currency, "greenbacks," revenue and postage stamps, and all other representatives of value issued under any act of congress.

Clause 7.—Postoffices.

To establish postoffices[1] and post roads.[2]

[1] The beneficence and usefulness of the postoffice every one can appreciate; it ministers to the comfort of all, rich and poor.

Placing the management of the postoffices with the general government secures greater efficiency and economy than would be possible if it were vested in the states.

[2] Congress generally uses roads already in existence. These are regularly selected, however, and declared to be post roads before they are used as such. The "road" may be a waterway.

But under authority of this clause congress has established some post roads. The principal highway thus established was the Cumberland road from the Potomac to the Ohio. The Union Pacific and Central Pacific railways were built under the authority and with the assistance of the United States as post and military roads.

Clause 8.—Copyrights and Patents.

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.

No one denies that an author or inventor is entitled to a fair reward for what he has done. But if every one were at liberty to print the book or to make the article invented, the due reward might not be received.

The wisdom of granting this power to the general government becomes apparent when we consider how poorly the end might be secured if the matter were left to the states. A person might secure a patent in one state and be entirely unprotected in the rest.

For further information upon this subject, see pages 318-19.

Clause 9.—United States Courts.

To constitute tribunals inferior to the Supreme Court.

Under this provision, congress has thus far constituted the following:

1. United States Circuit Courts of Appeal, one in each of the nine judicial circuits of the United States.

2. United States Circuit Courts, holding at least one session annually in each state.

3. United States District Courts, from one to three in each state. See pages 307-9.

4. A United States Court of Claims, to hear claims against the government. Such claims were formerly examined by congress.

Although not strictly United States Courts, the following may also be mentioned here, because they were established under authority of this clause:

1. The Supreme Court of the District of Columbia.

2. A Supreme Court and District Courts in each territory.

"Constituting" these courts involves establishing them, designating the number, appointment, and salaries of the judges, and the powers of each court. The term of United States judges is "during good behavior." This is fixed by the constitution (Art. III., section 1). The term of a territorial judge is four years.

Clause 10.—Crimes at Sea.

To define and punish piracies[1] and felonies[2] committed on the high seas[3] and offenses against the law of nations.[4]

[1] Piracy is robbery at sea, performed not by an individual but by a ship's crew. Pirates are outlaws, and may be put to death by any nation capturing them.

[2] A felony is any crime punishable by death or state prison. Felony covers murder, arson, larceny, burglary, etc. But congress may define piracy and felony to cover more or fewer crimes.

[3] The "high seas" are the waters of the ocean beyond low water mark. Low water mark is the limit of jurisdiction of a state, but the jurisdiction of the United States extends three miles further into the ocean, and includes all bays and gulfs.

Beyond the three-mile limit, the ocean is "common ground," belonging not to one nation but to all. Each nation has jurisdiction, however, over its merchant ships on the high seas, but not in a foreign port, and over its war ships everywhere.

[4] For an outline of the Law of Nations, see page 346.

Cases arising under this clause have been placed in the jurisdiction of the United States District Courts.

Clause 11.—Declaration of War.

To declare war,[1] grant letters of marque and reprisal[2] and make rules concerning captures on land and water.[3]

[1]: A declaration of war is a solemn notice to the world that hostilities actually exist or are about to commence.

The power to declare war is one of the attributes of sovereignty. If this power were in the hands of the several states, any one of them could at any time involve the whole country in the calamities of war, against the wishes of all the other states. With all their fear of the general government, shown in the character of the articles of confederation, the people in framing that instrument saw the necessity of vesting this power in the general government.

In monarchies, the power to declare war is generally vested in the executive. But in a republic, it would be dangerous to the interests and even the liberties of the people, to entrust this power to the president.

To put the thought in other words, the power to declare war belongs to the sovereign: in this country, the people are sovereign, therefore the power to declare war belongs to the people, and they act through their representative body, congress. (See pages 351-4.)

[2] These are commissions granted to private persons usually in time of war, authorizing the bearer to pass beyond the boundaries of his own country for the purpose of seizing the property of an enemy.

Sometimes such a letter is granted in times of peace, "to redress a grievance to a private citizen, which the offending nation refuses to redress." By authority of such a commission, the injured individual may seize property to the value of his injury from the subjects of the nation so refusing. But this practice is properly becoming rare.

[3] Vessels acting under letters of marque and reprisal are called privateers, and the captured vessels are called prizes.

Prizes are usually sold under authority of the United States District Court, and the proceeds divided among the crew of the ship making the capture.

The proceeds of captures on land belong to the government.

Clause 12.—Maintenance of Armies.

To raise and support armies;[1] but no appropriation of money to that use shall be for a longer term than two years.[2]_

[1] This is another sovereign power, and would seem the necessary accompaniment of the power to declare war. Under the confederation, however, congress could only designate the quota of men which each state ought to raise, and the actual enlistment of men was done by the several states. Their experience in carrying on the Revolutionary War on that basis satisfied them that efficiency and economy would both be secured by vesting this power in the general government.

[2] But to prevent misuse of the power, this proviso was inserted. As representatives are elected every two years, the people can promptly check any attempt to maintain an unnecessarily large army in times of peace.

A standing army is dangerous to liberty, because it is commanded by the executive, to whom it yields unquestioning obedience. Armies obey commands, while citizens comply with laws. And thus a large standing army creates a caste, out of sympathy with the lives of citizens. More than one republic has been overthrown by a successful military leader, supported by a devoted army.

As a matter of fact, congress makes the appropriation annually.

Clause 13.—The Navy.

To provide and maintain a navy.

The navy is necessary to protect fisheries and commerce. And in times of war the navy is needed to protect our sea coast, to transport soldiers, to cripple the enemy's resources, and to render blockades effectual.

It will be noticed that there is no limitation upon appropriations for the navy. This is for two general reasons: First, there is nothing to fear from a navy. "No nation was ever deprived of its liberty by its navy." Second, it takes time to provide a navy, and it should therefore be kept at all times in a state of efficiency.

For further information about the army and navy, see page 309.

Clause 14.—Army and Navy Regulations.

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

This is an incident to the preceding powers.

The army and navy regulations prescribe duties of officers, soldiers and seamen, and provide for the organization and management of courts martial. Disobedience to orders and insubordination are crimes in a soldier or sailor; and refusal to pay just debts or any other conduct "unbecoming to a gentleman," are punishable offenses in an officer. Thus it is seen that military law takes cognizance of offenses not usually noticed by civil law.

Clause 15.—The Militia.

To provide for calling forth the militia[1] to execute the laws of the Union, suppress insurrections and repel invasions.[2]

[1] Congress has declared the militia to be "all citizens and those who have declared their intention to become such, between the ages of eighteen and forty-five." These constitute what is called the unorganized militia. The military companies and regiments formed by authority of United States and state laws constitute the organized militia.

One of two policies we must pursue, either to maintain a large standing army or to depend upon the citizen-soldiers to meet emergencies. For several reasons, we prefer the latter. That our citizen-soldier may be depended upon has been demonstrated on many a battlefield.

[2] The clause specifies the purposes for which the militia may be called out. These are three in number. Each state may for similar purposes call forth its own militia.

Under the laws of congress, the president is authorized in certain emergencies to issue the call. This he directs to the governors of states, and those called on are bound to furnish the troops required.

On three occasions only have the militia been called out under this clause: In the Whisky Rebellion of 1794, to enforce the laws; in the war of 1812, to repel invasion; and in the Civil War, to suppress insurrection.

Clause 16.—Organization of the Militia.

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,[1] reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.[2]

[1] Thus only can the uniformity so essential to efficiency be secured.

[2] This is designed as a proper recognition of the right of each state to have militia companies and to control them, subject only to the necessary limitation mentioned.

The militia of a state consists of one or more regiments, with the proper regimental and company officers appointed by state authority. When these are mustered into the service of the United States and are formed into brigades and divisions, the appointment of the general officers is vested in the president.

Clause 17.—Exclusive Legislation.

To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by the cession of particular states, and the acceptance of congress, become the seat of government of the United States,[1] and to exercise like 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.[2]

[1] This refers to the territory afterwards selected, and now known as the District of Columbia.

The purpose of this provision is to free the general government from having to depend upon the protection of any state, and to enable it to secure the public buildings and archives from injury and itself from insult. [Footnote: The Continental Congress, while the capital was at Philadelphia, had to adjourn to Princeton to escape the violence of some dissatisfied soldiers. See Fiske's Critical Period of American History, page 112.]

Congress governed the District of Columbia directly until 1871, when for three years the experiment was tried of governing it as a territory. The territorial government in that time ran in debt over $20,000,000 for "public improvements," and congress abolished it.

The supervision of the district is now in the hands of three commissioners, appointed by the president, but controlled by congressional legislation.

[2] The propriety of the general government having exclusive authority over such places is too obvious to need comment. Crimes committed there are tried in the United States District Courts, but according to the laws of the state or territory.

The state in making the cession usually reserves the right to serve civil and criminal writs upon persons found within the ceded territory, in order that such places may not become asylums for fugitives from justice.

Clause 18.—Implied Powers.

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.

This clause does not grant any new power. "It is merely a declaration, to remove all uncertainty, that every power is to be so interpreted, as to include suitable means to carry it into execution." [Footnote: Story.]

It will be noticed that the powers of congress are enumerated, not defined, in the constitution; and the above clause has given rise to the doctrine of "implied powers," the basis of many political controversies.

Following are samples of "implied powers:"

By clause 2, congress has power "to borrow money on the credit of the United States." Implied in this, is the power to issue securities or evidences of debt, such as treasury notes. "To increase the credit of the United States, congress may make such evidences of debt a legal tender for debts, public and private." [Footnote: Lalor's Cylopedia of Political Science.]

Congress has power (clause 11) "to declare war." By implication it has power to prosecute the war "by all the legitimate methods known to international law." To that end, it may confiscate the property of public enemies, foreign or domestic; it may confiscate, therefore, their slaves. (See Emancipation Proclamation, page 362. For a hint of what congress might do, see Among the Lawmakers, p. 296.)

Pertinent Questions.

1. In what two ways may the first part of the first clause be interpreted? In what ways does the government levy taxes? How much of the money paid to the local treasurer goes to the United States? Have you ever paid a U.S. tax? Did you ever buy a pound of nails? Do you remember the "stamps" that used to be on match boxes? How came they there? Was that a direct or an indirect tax? A man who pays for a glass of beer or whisky pays a U.S. tax. How? Every time a person buys a cigar he pays a U.S. tax. If there be a cigar factory within reach, talk with the proprietor about this matter. Look at a cigar box and a beer keg to find some evidence of the tax paid. Name some things which were taxed a few years ago but are not now. What is a custom house? A port of entry? What are they for? Name the port of entry nearest to you. What is the present income of the United States from all kinds of taxation? What is done with the money? Look up the derivation of the word tariff.

2. How does the government "borrow?" Does the government owe you any money? If you have a "greenback," read its face. If the government is unable or unwilling to pay a creditor, what can he do? What is the "credit" of the United States? How much does the United States government owe, and in what form is the debt? How came it to be so large? Is the government paying it up? How much has been paid this fiscal year? What rate of interest has the government to pay? What is the current rate for private borrowers? How is it that the government can borrow at so low a rate? What is a "bond-call," and how is it made?

3. Has congress power to prohibit commerce with one or more foreign nations? Has it power to regulate commerce carried on wholly within a state? Can you buy lands from the Indians? Can the state? Has congress imposed a tariff to be paid in going from one state to another? What has requiring the engineer of a steamboat to secure a government license to do with "regulating commerce?" When did congress under this clause prohibit American merchant ships from leaving port? Under what provision of the constitution does congress impose restrictions upon the railroads? Does congress exercise any control over railroads lying wholly within one state? Why?

4. How can an alien become naturalized? Who are citizens of the United States? (See Amend. XIV.) Is a child of American parents, born during a temporary absence from this country, a citizen or an alien? An alien living in this country has children born here; are they citizens or aliens? A child is born on the ocean, while its parents are on the way here to found a new home and intending to become citizens; what is the status of the child? Are you a citizen? How may female aliens become citizens? Why should they desire to do so? How did citizens of Texas at the time of its admission become citizens of the United States?

What is an insolvent law? Has this state such a law? Can this state pass a bankrupt law? Can any state? Why? Is there any United States bankrupt law? Has congress ever passed such a law?

5. What is money? Is a bank bill money? Read one and see whether it pretends to be. What gold coins have you ever seen? What others have you heard of? What silver coins have you ever seen? What others have you heard of? What other coins have you seen or heard of? How are coins made? Where is the United States mint located? Where are the branch mints? How much value does the stamp of the government add to a piece of gold? Is there a dollar's worth of silver in a silver dollar? Why? (See Jevons' Money and the Mechanism of Exchange.)

How are national banks organized? (See appendix.) Under what constitutional provision does congress exercise this power? Are any banks organized under state authority? What is meant by "legal tender?"

Are foreign coins "legal tender" at the rate fixed by congress? For the value of the principal foreign coins, see appendix. Can congress punish counterfeiting of these coins?

Is there a standard pound in this state? A standard bushel?

6. Look on the back of a greenback for the law about counterfeiting. Is there any law against passing counterfeits?

7. When was our postoffice department established? Who was placed at the head of it? Who is the postmaster general? What is meant by "presidential offices" in speaking of postoffices? What are the present rates of postage in the United States? How much does it cost to send a letter to England? To Prussia? To Australia? When were postage stamps introduced? Stamped envelopes? Postal cards? In what four ways may money be sent by mail? Explain the workings and advantages of each method. What is the dead letter office?

What is meant by the franking privilege? Find the rates of postage in the
United States, in 1795, 1815, 1845, 1850, 1860. Does the power to
establish post roads, authorize congress to make internal improvements?
What is meant by "star route?"

8. Is this book copyrighted? Name some book that is not copyrighted. What things besides books are copyrighted? Can a copyright be sold? How is a copyright secured? How long do copyrights continue in force? How may they be renewed? Must new editions be copyrighted?

What is a patent? How are "letters patent" secured? How may an inventor secure time to perfect his invention? How can a patent be sold? May a person, not the patentee, make a patented article for his own use? Name ten important patented inventions. What is the purpose of the government in granting patents? Is this always secured? How does the expiration of a patent affect the price of an invention? If a person invents an article which proves helpful to millions of people, is it unfair that he should make a fortune out of it?

9. By what authority does congress organize courts in the territories? Could congress establish more than one Supreme Court? Name the United States District Judge for this state. The United States Attorney. The United States Marshal. If you had a claim against the United States how would you get your money?

10. Who may punish a pirate? Can a pirate claim the protection of the American flag?

11. Has the United States ever formally declared war? May war begin without a formal declaration? Does the president act with congress in declaring war, as in case of a law?

What protection is afforded by letters of marque and reprisal? Name some well known privateers. Tell about the "Alabama Claims," and their settlement. Upon what principle of international law did the decision hinge? See page 353.

12. With what other power is that of raising an army intimately connected? That of maintaining an army? How large is the United States army at the present time? Give arguments in favor of the militia system, as against that of a large standing army. What circumstances favor us in adopting the militia system? What country in Europe is most like us in this respect? Why is this possible in that country? Where are most of the officers of the U.S. army educated? How are appointments to the institution made? By what authority has congress established it? What is a military "draft?"

Who has charge of this department of the government? Name the four highest officers in the U. S. army. For the organization of the army, see page 309.

13. Name the present secretary of the navy; the two highest naval officers. Where are most of the naval officers educated? How does the navy of the United States compare with the navies of other great powers? Why? For organization of navy, see appendix.

14. What is the difference between military law and martial law? How are these "rules" made known? What is the source of authority in a military court? In a civil court? Is there any liability of a conflict of jurisdiction between these courts? When was flogging abolished in the army? In the navy? What punishments are inflicted by courts martial?

15. Distinguish between the militia and the regular army. Between militia and "volunteers."

16. How many regiments of organized militia in this state? Name the principal regimental officers. By whose authority were these appointed? Is there any "company" near you? Have you seen them drilling? Who prescribed the "tactics?"

17. Over what portions of this state has congress this "exclusive jurisdiction?" Give a brief sketch of the District of Columbia. When and by whom was slavery abolished therein?

18. Why should this be spoken of as "the sweeping clause?"

Debate.

Resolved, That free trade should be the ultimate policy for any country.

References.

PROTECTION.—Articles in Cyclopedias; Casey's Social Science, McKean's
Abridgment; Greeley's Political Economy; Byle's Sophisms of Free Trade;
Elder's Questions of the Day; Bowen's Political Economy.

FREE TRADE.—Articles in Cyclopedias; Grosvenor's Does Protection Protect?
Sumner's History of Protection in U.S.; Fawcett's Free Trade and
Protection; David A. Wells' Essays; Pamphlets published by the Free Trade
Club, N.Y.

A very fair statement of both views may be found in Macvane's Political
Economy.