American Government and the Constitution Lecture Two

American Government and the Constitution Lectures: 1-2-3-4-5-6-7-8-9-10-11-12-13-14

A fun way to learn more about the Constitution is to try to answer this question: which are its greatest provisions, and what inspired those provisions?

In our last Lecture we discussed the Preamble (We the People of the United States, in Order to form a more perfect Union ...."), and courts have construed it not to have any legally binding effect. The Preamble is merely "window-dressing", and does not establish any rights of the people, or any powers of government. It is a very eloquent introduction to the document.

After the 52 words of the Preamble, what is the most important provision? The winner might be the very next sentence, Article I, Section 1, which states:

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All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

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Only 25 words long, this Article I, Section 1 is perhaps the single most important provision in the entire Constitution. It is known as the "Bicameral Clause," because it establishes two chambers of Congress as the federal legislature. It is the result of the "Great Compromise" between the big and small States at the Constitutional Convention. The big states have more power in the House of Representatives, because there are more people in the big States and the number of representatives in the House is based on population. The small states have equal power in the Senate, because every State has exactly two representatives there, no matter how big or small the State is.

Article I

Article I is the first and most important Article in the Constitution, because it establishes and limits the legislative power of the national (federal) government. The "and limits" is often forgotten by the public. The federal government is a government of only limited powers. It can do only what it is allowed to do under its enumerated powers in the Constitution.

Congress cannot pass a law unless the law is authorized by one of the clauses in Article I of the Constitution. For example, Congress cannot establish a local federal police force in anyone's town. Congress does not have that power under the Constitution.

When Congress occasionally passes a law outside of its powers under Article I, then the Supreme Court usually declares the law to be invalid and unenforceable.

Each of the grants of power to Congress under Article I is identified by a separate name, such as the "War Powers Clause" and the "Coinage Clause." Every federal law that is in effect today -- and there are probably hundreds of thousands of them -- is based on one or more of the grants of power to Congress in Article I. There are so many federal laws which has been enacted since 1789 that the Library of Congress says it is impossible to count them all:

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At the reference desk, we are frequently asked to estimate the number of federal laws in force. However, trying to tally this number is nearly impossible.

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But each and every law must be based on a provision in Article I authorizing it, or else the law is unconstitutional. The following subsections explain some of the most important provisions in Article I which authorize laws or other congressional action. A terrific free resource for each clause in the Constitution is provided by the Heritage Foundation, and its link is in this footnote.

Commerce Clause

The Commerce Clause grants to Congress the power:

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to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

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This is Article 1, Section 8, clause 3, and it is one of the most important clauses in all of the Constitution. Much, perhaps even most, of what Congress passes as laws are based on the Commerce Clause.

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"Dormant" Commerce Clause

The “dormant” Commerce Clause is implied by the Commerce Clause, by prohibiting states from enacting laws that interfere with interstate commerce. For examples, states are not allowed to impose taxes on goods or services provided from within one state to a buyer in another state.

Copyright and Patent Clause

Without much discussion, the Framers of the Constitution inserted this clause to protect authors (with copyright) and inventors (with patents):

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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;

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The citation for the above Copyright and Patent Clause is "U.S. Const. Art. I, §8, cl. 1" - which means the United States Constitution at Article I, section 8, clause 1.

In 1787, when the Constitution was written, the word "science" meant generalized learning, such as natural philosophy. The word did not have the connotation of technology or inventions that the word has today. The "Progress of Science" meant new books and other creations of authors; the "useful Arts" meant inventions.

The Patent Act of 1790 provides that a person who has "invented or discovered any useful art, manufacture, engine, machine, or device, or any improvement therein not before known or used" may be awarded a patent.

Necessary and Proper Clause

The Necessary and Proper Clause, unofficially known as the Elastic Clause, has been used to expand the power of the federal (national) government.

Origination Clause

An example of the influence of England on the Constitution is the Origination Clause, which is Article I, Section 7, clause 1:

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All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

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The Origination Clause is a safeguard against overreaching federal power, by ensuring that only the representatives most accountable to the people – the more frequently elected House of Representatives – would control the purse strings.

The Origination Clause embodies the essential principle of political accountability, which has been valued highly before, during and after the Constitutional Convention in 1787. Prior to the Constitutional Convention a majority of the states had versions of the Origination Clause in their own state constitutions, to guarantee that revenue-raising measures could originate only from representatives who are the most accountable to the people. Scholars have traced the history of the Origination Clause back even earlier to the British Parliament in the 1600s, where new taxes could originate only in the House of Commons and not in the House of Lords, and the roots of this basic liberty extend all the way back to the Magna Carta itself.

Even today many state constitutions continue to have origination clauses in order to maximize political accountability for those who initiate new taxes.

One Framer, the future Vice President Elbridge Gerry of Massachusetts insisted during the Constitutional Convention on inclusion of the Origination Clause in the U.S. Constitution, in order to “restrain the Senatorial branch from originating money bills." The Senate would be (and still is) less representative and less accountable to the people than members of the House of Representatives are, and thus less restrained by the people against raising new revenue from them.

Madison’s notes from the Constitutional Convention set forth in detail the discussions about the Origination Clause, and confirm how important it was to the delegates. Madison observed that it was the view of the Framer George Mason, who was one of the strongest opponents of a powerful new federal government, that prevailed at the Convention in order to limit the power of the Senate:

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The consideration which weighted with the Committee was that the 1st branch would be the immediate representatives of the people, the 2nd would not. Should the latter have the power of giving away the peoples money, they might soon forget the source from whence they received it. We might soon have an Aristocracy.

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Multiple delegates to the Constitutional Convention, including Elbridge Gerry, John Dickenson and Edmund Randolph, felt that ratification of the new Constitution would be in jeopardy if this essential limitation on the origination of revenue-raising bills were not included. By an overwhelming vote of 9-2, the appropriate Committee approved the provision that "All bills for raising revenue shall originate in the House of Representatives," with only the small states of Maryland and Delaware in dissent. The additional caveat that the Senate would retain the power to amend was never officially recorded at the Constitutional Convention, id., an omission that underscores how the power to amend by the Senate should not be allowed to swallow the rule that was passed and recorded.

James Madison became an enthusiastic supporter of the Origination Clause during the ratification process. As Madison wrote anonymously in Federalist No. 58 in order to promote ratification of the Constitution:

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The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of the government. … This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect, ever just and salutary measure.

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Today there are lawsuits challenging the constitutionality of ObamaCare (the Patient Protection and Affordable Care Act) based on the Origination Clause.

Overriding a Veto

After World War II, in 1946, strikes by unions were ravaging the United States. President Truman had caved into communist Josef Stalin in the post-War negotiations, giving Stalin everything he wanted in Eastern Europe. Many feared communist infiltration of labor unions in the United States, and the devastating work stoppages hurt the economy and alarmed the public.

No year in American history had as many labor strikes, affecting so many industries, as occurred in 1946. A newspaper called the Evansville Courier, for example, observed that a coal strike in 1946 was "the most momentous event in the country's peacetime history."

Historians refer to this as the "Great Strike Wave of 1946," or sometimes late 1945 is also included, because the strikes began almost as soon as World War II ended in August 1945. In 1946, there was a total of 4,985 strikes, which involved 4.6 million workers for a grand total of 116 million workdays.

The American public was outraged by this, and punished the Democrats on Election Day in November 1946. Republicans won by a landslide in the races for Congress. It was not a presidential election year, so Democrat Harry Truman remained the president. But Republicans obtained large majorities in the House of Representatives (the "House") and the Senate, and immediately began thinking of ways to curb the power of unions.

The result was the passage in the House and Senate of the Taft-Hartley Act, in 1947. This law declared required an oath swearing not to be a communist to be taken by the leaders of unions, and the law established the right of states to become "right to work" states prohibiting unions from requiring all the workers at a company to join a union in order to work there. (Most southern states are "right to work" states; New Jersey is not, which means that unions are still very powerful in New Jersey.)

Then Democratic President Harry Truman vetoed the legislation, as a president has the power to do under the Constitution.

<explain the override of the veto>

Magna Carta

Nearly 800 years ago, in the summer of 1215, the English King John agreed to the Magna Carta.

Homework

1. Question about elections for Congress.

2. Question about Congress's enumerated powers.