THE UNITED STATES SENATE, A.D. 1850.
Senator Henry Clay addressing his colleagues (including Daniel Webster and John C. Calhoun) under the watchful gaze of the gallery. Congressional freedom of speech as guaranteed by Article I, section 6. (Illustration Credit 3.1)
If the three-fifths clause endowed one form of private property with too much public power, several other Article I clauses—especially the provisions concerning congressional privileges—struck a better balance between private rights and the public good. In general, the closing sections of Article I carried forward the main themes of its opening sections and of the Preamble. Americans would run a continental republic designed to keep foreign powers at bay, aggressive states in line, America’s military under control, and slave masters on board.
Article I, section 6 “privileged” senators and representatives from certain kinds of “Arrest during their Attendance” in Congress. The privilege applied only to various civil cases, still prevalent in the eighteenth century, in which a litigant sought the physical arrest of a defendant. (No congressional privilege would exist in cases of “Treason, Felony and Breach of the Peace”—a catchall English-law term of art effectively covering all crimes.)1 Without the privilege, a single private civil litigant, perhaps by design, might undo the voters’ verdict by keeping their man off the floor. As Jefferson explained in his famed Manual of Parliamentary Practice, “When a representative is withdrawn from his seat by summons, the 30,000 people whom he represents lose their voice in debate and vote.” The private privilege thus served a public purpose. In the name of democracy, a sitting congressman could claim temporary immunity and oblige his would-be civil arrester to wait until the legislative session had ended. If a lawmaker abused this privilege, the voters could punish him at the next election. To put legislators from distant states on equal footing with those living near the national seat, the privilege would apply to lawmakers traveling to and from Congress.2
A crucial companion privilege in Article I, section 6 shielded congressmen from being “questioned” outside Congress for any “Speech or Debate in either House.” As with the arrest clause, this privilege had roots in the language of the Articles of Confederation and, deeper still, in English practice. According to the English Bill of Rights of 1689, “the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.” The Revolutionary-era constitutions of Massachusetts, New Hampshire, and Vermont featured roughly similar language affirming legislative freedom of speech.3
The core privilege in both England and America aimed to ensure that legislatures remained forums for robust political discourse. Parliament—from the French parler—functioned as a privileged parley place, a special speech spot. Neither the executive nor the judiciary could punish a lawmaker for any floor speech. Here, too, a private right vindicated the larger public interest, as James Wilson emphasized in 1791: “In order to enable and encourage a representative of the publick to discharge his publick trust with firmness and success, it is indispensably necessary, that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however powerful, to whom the exercise of that liberty may occasion offence.”4
In America, this privilege also implicated issues of federalism. Congressional debaters could claim absolute immunity from state civil and criminal libel actions, just as state lawmakers speaking in their assemblies could fend off federal libel suits. In the late 1790s, this immunity for state legislative speech, rooted in colonial traditions and implicit in the Constitution’s general structure, emboldened Virginia and Kentucky legislators to condemn federal lawmakers at a time when many other would-be critics kept mum for fear of federal prosecution under the 1798 Sedition Act.
Even as it built upon English antecedents, the Constitution broke new ground by giving lawmakers less power to censor and citizens more power to criticize than did England. English law fortified freedom of speech inside Parliament but left freedom of speech outside Parliament rather vulnerable. In fact, outsiders who criticized Parliament could find themselves accused of violating the privileges of Parliament itself. Thus, eighteenth-century Parliaments regularly visited contempt sanctions on common speakers and printers who had the effrontery to criticize or “question” Parliament, in violation (as Parliament saw the matter) of the 1689 command that “proceedings in Parliament” simply could not be “questioned” by outsiders.5
In sharp contrast, nothing in the Article I speech clause, rightly read, allowed Congress to punish ordinary Americans who spoke out against Congress. Nor did any other clause of the Constitution authorize Congress to censor opposition speech—a point stressed by Federalists from North to South in the ratification debates.6 Anti-Federalists demanded express language affirming this and other limitations on Congress, and guaranteeing various rights of the people. To mollify these skeptics and woo North Carolina and Rhode Island—which had yet to join the new union—the First Congress codified Federalist reassurances in a proposed constitutional amendment safeguarding citizen speech rights alongside freedom of religion, press, petition, and assembly. (Thus we see again how the exceptionally democratic process of constitutional ordainment propelled still further republican reforms and refinements.) Originally numbered third on a slate of twelve proposed amendments, the speech language eventually became the First Amendment when it won ratification in the states in 1791, along with initial amendments Four through Twelve.
Elsewhere in our story, we shall study these first ten amendments—America’s Bill of Rights—in some detail. At this point, however, it is useful to keep the First Amendment speech clause in mind alongside its older sibling, the Article I speech clause. Underlying both clauses lay profound, if not altogether English, ideas about the nature of popular self-government. In England, Parliament was legally sovereign and socially superior. For an ordinary Englishman to criticize Parliament was, in a way, impudent. Perhaps there was thus a certain (classist) logic when Parliament held such a critic in “contempt”—le mot juste. But in America, where the people themselves were sovereign, by what right could government punish members of the sovereign citizenry who spoke out against Congress? America’s first premise of popular sovereignty decisively separated it from England, as Madison briefly noted in the First Congress when introducing an amendment that would guarantee ordinary citizens a freedom of speech and debate akin to what congressmen enjoyed under Article I. In 1794, Madison sharpened the point: “If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people.” In America, if not in England, the people were truly the sovereign masters, and government officials were merely servants who could indeed be scolded.7
In 1798, in violation of all that the Constitution’s supporters had said and written in 1787–89, Congress passed a federal Sedition Act that punished Americans for criticizing Congress. Though congressmen calling themselves “Federalists” backed the act, very few of these men had been Federalist leaders a decade before, when the American people ordained the Constitution and added a Bill of Rights. Madison, who was a preeminent Founding Federalist, not to mention the sponsor of the speech amendment, joined forces with Jefferson to crusade against the oppressive act.
While Jefferson emphasized that Congress lacked any enumerated federal power to enact censorship laws—an argument that implied that state libel law could fill the breach—Madison went further, calling attention to the deep logic of popular sovereignty and the “essential difference between the British Government and the American constitutions.” Whereas Parliament was “omnipotent,” in America “the people, not the government, possess the absolute sovereignty.” American elections depended on “the equal freedom” of “examining and discussing [the] merits and demerits of the candidates respectively.”8 Unless challengers enjoyed a freedom of speech roughly comparable to that of incumbent congressmen, the election debate would not be “equal,” Madison argued. If incumbents were free to attack challengers in speeches inside Congress and elsewhere, challengers must be comparably free to criticize incumbents in speeches outside Congress. The Amendment I free-speech clause thus complemented the Article I free-speech clause so as to guarantee America’s true sovereign—the people—the same broad right of political discourse traditionally enjoyed in England by the sovereign Parliament.
Although this Madisonian reading of American speech law became judicial orthodoxy only in the twentieth century,9 even supporters of the Sedition Act positioned themselves far ahead of contemporaneous English law. The 1798 Act made truth an absolute defense. Granted, this was insufficient protection because certain biting criticisms were legally presumed false, and because truth could not always be affirmatively proved in court, especially where critical commentary blended fact and opinion. Yet English law did not even recognize truth as a defense until the 1840s. At the time of America’s Founding, English law held that the truth of a libel actually compounded its harm by lowering the libel target’s reputation and in effect depriving him of his property. The greater the social standing of the target and the greater the truth of the insult, the greater the legal harm.
On top of all this, the hereditary nature of the House of Lords and the steep property qualifications for Commons combined with parliamentary privilege so as to give special speech rights to the upper class not enjoyed by the mass of commoners. The lords also enjoyed immunity from civil arrest whether or not Parliament was in session.10 English speech law thus routinely subordinated the liberty and equality of the many to the dignity and property of a privileged few. American speech law championed wider notions of freedom and democracy in the paired speech clauses of Article I and Amendment I.
The longest section of the Constitution’s longest Article aimed to enumerate the main powers of Congress and thereby resolve hard questions of federalism, separation of powers, and rights. Some of the powers not given to Congress would reside with the states; others would be wielded by the president and federal courts; and still others simply lay beyond the proper scope of all government and were thus reserved to the people.
The federalism issue, in its previous incarnations, had torn the British Empire apart in the mid-1770s and had bedeviled America’s first efforts at continental coordination in the mid-1780s. Prior to 1763, a rough working arrangement had emerged within the empire, whereby each provincial American assembly decided matters of taxation and internal affairs while London regulated trade among different parts of the whole and promulgated general foreign policy. In most colonies, a resident governor appointed in England could irreversibly veto all assembly bills, which could also be set aside by the British Privy Council. Then came the 1765 Stamp Act, the 1767 Townshend Duties, the 1773 Tea Act, and the 1774 Coercive Acts, by which Parliament asserted authority to saddle the colonists with newfangled internal taxes, other revenue-seeking duties, and a variety of intrusive internal regulations. Outraged, some advanced American thinkers in the mid-1760s laid the intellectual groundwork for complete American independence from Parliament. Under their sweeping theory, provincial assemblies and Parliament simply shared a common king, and Parliament itself had no direct authority over the provinces. Most American patriots before 1775 took a more moderate position. Essentially, moderates proposed to constitutionalize an early version of federalism by codifying the working arrangement that had prevailed before 1763: Provincial assemblies should retain power over internal matters and taxes while Parliament and the king could continue to manage imperial trade, continental defense, and foreign affairs.11
British authorities countered American moderates’ proposals with the absolutist logic of parliamentary sovereignty. Sovereignty implied legal omnipotence—plenary power over all colonial matters, whether external or internal. In the words of Britain’s Declaratory Act of 1766, Parliament “hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America … in all cases whatsoever.”12
In response, Americans ultimately declared their independence not just from the old empire but also from old ideas of sovereignty. Led by Wilson, American legal theorists in the 1780s conceptually relocated sovereignty from Parliament to the people themselves, and thereby fashioned an intellectual framework facilitating the constitutionalization of federalism, separation of powers, and limited government. In this new framework, no single government entity had, or of right ought to have, all power. Sovereignty originated and remained with the people, who could parcel out and reclaim discrete chunks of power as they saw fit. Thus, the people could divide power howsoever they chose between their state and continental officers, or among different branches within the continental government. Or they could choose to withhold some powers from all governments.
The challenge confronting America in 1787 was to avoid both a dangerously strong central regime (Parliament) and a dangerously weak one (the Confederation Congress). Between these two extremes, two visions of national power emerged at Philadelphia. The first, which ultimately prevailed, aimed to vest Congress with ample authority over interstate and international affairs for the geostrategic reasons soon to be elaborated in the early Federalist essays. The second, unsuccessfully championed by Madison, sought to add to these powers a general federal veto of state laws, in keeping with the more ambitious vision of union on display in The Federalist No. 10.
MOST OF THE POWERS that Article I, section 8 conferred on Congress flowed naturally from the geostrategic vision of union distilled in the Preamble. Thus, section 8 began by echoing the Preamble almost verbatim, in language affirming the need to “Provide for the common Defence and general Welfare.” (Similar phraseology had also appeared in the Articles of Confederation.) Section 8’s opening clause minced no words in affirming that, precisely in order to promote these goals of continental security and prosperity, the new Congress would be empowered to impose a broad range of “Taxes, Duties, Imposts and Excises.” The old Confederation had notoriously lacked power to impose such taxes, and national defense and prosperity had visibly suffered. State governments had often failed to provide the funds that the Confederation demanded of them. For example, in 1781 Congress requisitioned states for some $8 million for the following year but received less than half a million. Without a strong revenue stream, vital federal functions were withering. Lacking a powerful army and navy, Americans in 1787 found themselves at the mercy of monarchs and pirates. Also, with no power to impose continental tariffs on foreign imports, the Confederation had little leverage in prying open foreign markets for American exports.13
Thus, only a decade after they revolted against imperial taxes, Americans were being asked to authorize a sweeping regime of continental taxes, with the decisive difference that these new taxes would be decided on by public servants chosen by the American people themselves—taxation with representation. Elsewhere, Article I required that all revenue bills originate in the House of Representatives, a rule with little bite because the Senate would enjoy unlimited power to propose amendments.
Section 8’s opening clause went on to link federal taxation to the payment of national “Debts”—most obviously war debts. The vast bulk of preexisting continental debt came from the Revolutionary War, and congressional power to “borrow Money on the credit of the United States,” as authorized by section 8’s next sentence, surely contemplated the possibility of future wars. Without the ability first to borrow money from abroad when war threatened and then to pay back the loans on time—lest lending nations treat nonpayment as grounds for their own wars14—America would become a tempting target for European empires lusting after dominion.
Next came words giving Congress power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Modern lawyers and judges typically refer to these words as the “commerce clause,” and today’s Supreme Court has moved toward reading the paragraph as applicable only to economic interactions.15 But “commerce” also had in 1787, and retains even now, a broader meaning referring to all forms of intercourse in the affairs of life, whether or not narrowly economic or mediated by explicit markets. Bolingbroke’s famous mid-eighteenth-century tract, The Idea of a Patriot King, spoke of the “free and easy commerce of social life,” and other contemporary texts referred to “domestic animals which have the greatest Commerce with mankind” and “our Lord’s commerce with his disciples.”16 Structurally, the broader reading of “Commerce” in this clause would seem to make better sense of the framers’ general goals by enabling Congress to regulate all interactions (and altercations) with foreign nations and Indian tribes—interactions that, if improperly handled by a single state acting on its own, might lead to needless wars or otherwise compromise the interests of sister states. Draft language at Philadelphia had in fact empowered Congress “to regulate affairs with the Indians,” but the word “affairs” dropped out when the delegates opted to fold the Indian clause into the general interstate and international “Commerce” provision.17 Without a broad reading of “Commerce” in this clause, it is not entirely clear whence the federal government would derive its needed power to deal with noneconomic international incidents—or for that matter to address the entire range of vexing nonmercantile interactions and altercations that might arise among states.18
Under a broad reading, if a given problem genuinely spilled across state or national lines, Congress could act. Conversely, a problem would not truly be “with” foreign regimes or “among” the states, so long as it remained wholly internal to each affected state, with no spillover. On this view, legal clarity might be advanced if lawyers and judges began referring to these words not as “the commerce clause,” but rather as “the international-and-interstate clause” or the “with-and-among clause.”a 19
The rest of section 8 continued in the same geostrategic spirit. Six separate paragraphs—a cluster that we shall consider in more detail presently—addressed interrelated issues of war, armies, navies, and militias. Two other paragraphs authorized Congress to naturalize immigrants from foreign lands and to punish criminals who menaced ships on the high seas or violated the law of nations. Most of these proposed federal powers had traditionally fallen outside the purview of individual colonial governments prior to 1763. Congress here inherited the mantle of British imperial authority.
Several other clauses aimed to further harmonize relations between the states, in keeping with the expansive vision sketched out in Jay/Publius’s Federalist No. 2. Uniform bankruptcy rules would stabilize interstate lending practices and spur a national market in negotiable instruments, just as continental standards for copyrights and patents would create a broad New World market for authors and inventors. Standard weights and measures, federal post offices and post roads, a continental money supply alongside uniform regulations of foreign currency—all these would help knit far-flung Americans together, economically and socially.
Largely omitted from this list of congressional powers was the authority to intervene to protect a citizen from the folly or injustice of his own state legislature. Prior to 1776, royal and proprietary governors and the Privy Council had typically claimed the absolute right to block bills passed by colonial assemblies, but by 1787 only Massachusetts and New York had opted for any sort of gubernatorial veto, and even in these two states the veto could be overridden by a two-thirds vote of each house. Madison and other Federalists decried the absence of executive vetoes in most state governments and took pride in building a nonabsolute presidential veto, à la Massachusetts, into the structure of federal lawmaking. Madison also tried, unsuccessfully, to revise the basic structure of state lawmaking by giving Congress the same wide-ranging power to veto state laws that imperial governors and privy counselors had wielded in the colonial era.
As Madison saw it, state governments lacked sufficient ballast, and a general congressional “negative” over all new state laws would enable continental representatives of greater wisdom and reputation to prevent ill-considered or oppressive state laws from taking effect. When Charles Pinckney proposed such a negative at Philadelphia, arguing that “under the British Govt, the negative of the Crown had been found beneficial,” Madison warmly seconded the motion. While Pinckney and other supporters emphasized how this proposed veto would protect the interests of the nation and of citizens of sister states, Madison went further. A congressional veto would also prevent state assemblies from “oppress[ing] the weaker party within their respective jurisdictions.” In a similar spirit, Wilson argued that “we have seen the Legislatures in our own Country deprive the citizen of Life, of Liberty, & property [and] we have seen Attainders, Banishments, & Confiscations.”20
Yet most delegates at Philadelphia remained unpersuaded that Congress should enjoy sweeping authority to protect a citizen from his own state legislature, a legislature that in most cases had roots more than a century deep. Hugh Williamson spoke for many in opposing a general power of Congress “that might restrain the States from regulating their internal police.”21 Ultimately, although the Constitution proposed to protect a key cluster of internal matters from state abuse under Article I, section 10, these guarantees of individual rights against one’s own state would largely be enforced by state and federal courts, not directly by Congress. While Madison had faith that wise federal lawmakers operating over an extended geographic sphere would be more trustworthy and protective of minority rights than would state lawmakers—a vision he later elaborated in his Federalist No. 10—his fellow drafters did not fully share this vision, and repeatedly refused to give Congress the sweeping veto that Madison craved.
The delegates did vest Congress with sweeping power of a different sort in the final clause of section 8. Anti-Federalists fretted about the threat to states’ rights posed by words empowering Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” In response, Federalists repeatedly explained that these words did not constitute some free-floating grant of near-plenary power. Rather, the clause merely clarified that the rest of Article I, section 8 should be read at face value. While the Articles of Confederation had proclaimed that Congress had only the powers “expressly” granted by that document, Article I pointedly avoided this stingy word. The new Congress would thus have all powers expressly listed in the document and also anything that followed by fair, commonsensical implication.22
In the most famous case ever to construe the necessary-and-proper clause, Chief Justice John Marshall, writing thirty years after the Founding, in fact placed primary reliance on the other clauses of section 8 to uphold a broad view of federal legislative authority. As Marshall saw it, congressional power to create a national bank flowed from various early enumerations, and the last words of section 8 added little or nothing to the affirmative case. Reading the document through a geostrategic prism, Marshall emphasized the national need for an army able to defend a “vast republic, from the Saint Croix to the Gulph of Mexico, from the Atlantic to the Pacific.” Because a national bank with branches across the continent might help in paying soldiers on-site and on time, Marshall (who had spent the winter of 1777–78 encamped at Valley Forge) held that such a bank fell within Article I’s enumerations concerning “the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies.”23
In truth, the real sweep of section 8’s final clause extended not downward over states but sideways against other branches of the federal government. Congress would have broad authority to pass laws “carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Here the Constitution’s text made explicit what otherwise might have been a disputable reading of the document’s organizing schema: Congress stood first among equals, with wide power to structure the second-mentioned executive and third-mentioned judicial branches. Thus Congress would decide how many cabinet departments would fill the executive branch; how these cabinet departments would be shaped and bounded; how many justices would compose the Supreme Court; where and when the Court would sit; what substantive laws and procedures would apply to federal admiralty cases; and a multitude of similarly weighty organizational issues.b 24
Other language of Article I, section 8 likewise operated more horizontally than vertically, reinforcing Congress’s primacy among the three federal branches. The English Crown had historically created courts by royal prerogative, and had notably exercised this power in America by establishing certain juryless chancery courts and vice-admiralty tribunals that many colonists came to detest.25 But now Congress would be the branch to “constitute” inferior courts by deciding how many courts there should be, where they should sit, how they should be organized, what sorts of cases they should hear, what rules of procedure and evidence they should follow, and so on. (The president would nominate the judges to these courts, subject to Senate confirmation.) The monarch had also enjoyed various powers over naturalization, weights and measures, patents, copyrights, and coins that, as we have seen, Article I vested in the legislative branch.26
Article I’s seat-of-government clause implicated yet another aspect of separation of powers. By British tradition, the king could summon Parliament to meet at a place of his choosing. Royal governors claimed similar powers over colonial assemblies. According to historian Allan Nevins, South Carolina’s governor in the early 1770s had “fatuously called a session of the legislature at an inconvenient, unhealthy spot, Beaufort, hoping the stubborn Charleston members would not attend.”27 Jefferson’s Declaration of Independence had condemned George III for “call[ing] together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.” Against this backdrop, Article I made clear that Congress, not the president, would decide where to sit and where to locate the permanent national capital—a “District” forming “the Seat of the Government.” Earlier language of Article I made clear that any decision to move the legislative meeting place during any particular congressional session would require the concurrence of both legislative houses.
Broad congressional authority over other branches raised the problem of pretext. For instance, what if Congress tried to twist its power to constitute tribunals or regulate the Supreme Court into a general right to dictate how federal judges should rule on the merits in constitutional cases? Similar concerns about pretext arose in the domains of federalism and rights. Although Congress lacked general power to tell a state where to locate its state capital—and was affirmatively barred by section 4 from dictating where a state legislature could meet when “chusing” its federal Senators—what if Congress prohibited all imports into any state that refused to plant its statehouse where Congress preferred? What if Congress tried to target opposition newspapers by imposing a tax on these papers and only these papers, or withholding copyright protection from them, or prohibiting them from being shipped across state lines?
The general problem of pretext had vexed American colonists in the years before independence. Moderate patriots had conceded that Parliament might properly regulate trade among different parts of the Empire but had contested Parliament’s authority to impose taxes—even when such taxes appeared in sheep’s clothing, as with the 1767 Townshend Duties that took the form of trade regulations but were plainly aimed at raising revenue. To discourage analogously pretextual use of congressional power, section 8 employed three main strategies. First, the framers at times tried to specify the purpose of a particular power. Patents and copyrights could not be given merely to reward political allies, but only “to promote the Progress of Science and useful Arts.”
A second strategy denied Congress the power to play favorites among states in various contexts. Unlike Parliament, which had privileged Englishmen in England at the expense of Englishmen in America, Congress should pursue only the “common” defense and “general” welfare. All duties, imposts, and excises were to be “uniform” throughout the United States. Federal naturalization and bankruptcy laws should likewise be “uniform,” and a national seat would lie outside the formal jurisdiction of any member state. Later language in Article I, in section 9, demanded federal neutrality among ports in different states.
A third and still more global safeguard came from the language at the end of section 8 confirming its general spirit: Only laws that were truly “proper” to permissible federal ends would be allowed. For example, the object of censoring its critics was, for sound republican reasons, not entrusted to the government. Thus any pretextual use of the tax power to single out opposition newspapers would not be constitutionally “proper.” As John Marshall would reiterate in 1819, Congress could not “under the pretext of executing its power, pass laws for the accomplishment of objects not entrusted to the government.” Congressional statutes, wrote Marshall, had to comport with the “spirit” as well as the “letter” of section 8 enumerations.28
WHICH BRINGS US TO one area where power was conspicuously absent in both letter and spirit: abolition in the several states. Nothing in the section 8 list gave Congress general authority to end slavery, even in the long run; and no one at Philadelphia floated such a proposal. (Madison’s preferred negative would have operated only to restrain new state laws, but would not have enabled Congress to undo state slave codes already on the books.) Addressing his fellow slave masters in the Virginia ratifying convention, Madison spoke bluntly: “No power is given to the general government to interpose with respect to the property in slaves now held by the states”—a point forcefully reiterated by Edmund Randolph, who noted that even the slavery-obsessed South Carolinians at Philadelphia had been satisfied on that count.29 In the Palmetto State itself, another Philadelphia delegate, Charles Cotesworth Pinckney, had already publicly assured his audience that “the general government can never emancipate [our Negroes], for no such authority is granted.” James Iredell later offered similar assurances to North Carolinians. Federal lawmakers confirmed this understanding in a report printed by the first House of Representatives in March 1790, which declared that “Congress have no authority to interfere in the emancipation of slaves, or in the treatment of them within any of the States.” Though the report made no mention of Congress’s power to regulate or prohibit interstate commerce in slaves, even an expansive view of this power left the vast majority of in-state slaves beyond the reach of would-be federal abolitionists.30
In early 1861, a lame-duck Congress hoping to avert a civil war went so far as to vote for Ohio’s Representative Thomas Corwin’s plan to add a new (thirteenth) amendment to the Constitution that would explicitly and irrevocably (!) disclaim congressional power “to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”31 In his First Inaugural Address, Lincoln tentatively endorsed this solution. “Holding such a provision to now be implied constitutional law, I have no objection to its being made express.”
This proposed thirteenth amendment failed to appease Southern extremists, who worried that Lincoln would use his executive authority to appoint antislavery territorial governors, and that his congressional allies would use their plenary power over the territories to prevent slavery’s further expansion. A more immediate threat to slavery in the states came from Lincoln’s anticipated use of federal patronage power to build an antislavery party in Dixie, and his apparent desire to allow abolitionist literature—which had long been excluded from the federal mail—to circulate freely. Yet the very modesty of such likely Lincolnian measures serves to highlight how little direct authority the federal government had, circa 1861, to uproot slavery in the states.
When the South spurned the proposed Corwin Amendment, an epic military struggle ensued, forging a chain of events that ultimately led Congress in 1865 to propose a diametrically opposed thirteenth amendment, whose provisions we shall study later. At present, let us merely note that the nation’s ultimate constitutional fate in the 1860s pivoted on the alignment of American military power—an alignment that had been shaped by several critical section 8 paragraphs. To these key paragraphs we now turn.
The Constitution dramatically expanded the central government’s military powers while fashioning several safeguards to deter and if necessary overcome abuse of these powers.
Under the Articles of Confederation, Congress could raise troops only by “requisition[ing]” each state for its proportionate “quota” of men determined by white population. Each state legislature retained the power to “raise, … cloath, arm and equip” its troops, and to appoint all regimental officers “of or under the rank of colonel.” To raise the funds to pay for these men and materiel, Congress once again had to rely on state governmental compliance with a quota system, this time based on wealth. The requisition system failed miserably and came perilously close to handing victory to the British in the Revolutionary War. With inadequate mechanisms to enforce states’ obligations, many states held back, hoarding resources for local defense despite more urgent need for them elsewhere on the continent. The challenge facing America in the late 1780s, then, was to find a way to strengthen its military structure against foreign foes without imperiling domestic liberty.
Breaking with the old requisition system, the new Constitution empowered the central government to raise its own army and navy without state intervention, to impose taxes and duties on individuals to pay for these armed forces, and to appoint all professional military officers. The Constitution also went beyond the Articles by authorizing the continental government to nationalize state militias in order to “execute the Laws of the Union, suppress Insurrections and repel Invasions.” Should any state succumb to a military dictator, menace its neighbors, or proclaim itself independent, the union thus had authority to intervene with military force, relying on militiamen from sister states as well as loyal militiamen from the insurrectionist state, in addition to the union’s own professional troops.
The awesomeness of these new military powers, and their evident susceptibility to abuse if not properly constrained, prompted the framers to balance military power more carefully within the national government. In England, the king had the power to both declare war and command troops. He could also unilaterally issue letters of marque and reprisal, authorizing private ships to engage in limited military assaults. Under the Confederation, all of these powers resided, at least on paper, in a single unicameral body. By contrast, the Constitution split these powers between legislature and executive, empowering Congress to declare war and authorize the issuance of letters of marque and reprisal, while making the president the military commander in chief with implied authority to use force if necessary to push back a sudden invasion or put down a violent insurrection.c Similarly, Congress could lay down “Rules for the Government and Regulation” of military forces, but the president would execute these rules. Congress could authorize army appropriations, but the president would superintend actual disbursements. Congress could provide rules for nationalizing state militias, but the president would command these men whenever they were called into service. Congress, via its power to spend and regulate, would have the last word on the basic structure of the officer force, but the president would nominate individual officers, subject to Senate confirmation.
The Constitution also enabled the voters themselves to check the military via a special sunset rule for military funding: “No Appropriation of [army] Money … shall be for a longer Term than two Years.” For all other purposes—even navies—Congress could authorize standing appropriations that would keep funds flowing until a later Congress repealed the initial appropriation law. Had these ordinary appropriation rules applied to the army, whenever one careless or corrupt Congress created a standing appropriation for the military, a permanent army might stand its ground even after it lost the support of the House of Representatives, so long as it stayed enough in the good graces of the Senate or the president to block repeal. Precisely to prevent this scenario, section 8 required army—and only army—appropriations to run a stricter gauntlet. No standing appropriations would be permitted for standing armies. Every army appropriation would automatically dry up after two years, and only a fresh vote in each new term of Congress could keep the money flowing. Thus the people’s House could unilaterally stop a standing army in its tracks simply by refusing to fund it; and even if the new House favored reauthorization, the Senate would still need to agree, as would the president (absent a veto override).
The particular two-year cutoff meshed perfectly with the gears of the Constitution’s electoral clock, which would bring the entire House membership before the American electorate every two years.32 If the people did not want to continue the army, they could simply vote for a new House, which could then just say no—or more precisely, refuse to say yes—and thereby oblige the standing army to fold its tents. America would never be more than two years away from presumptive demilitarization. Even if ten consecutive Congresses overwhelmingly supported a standing army, the eleventh House—and by extension, the American electorate at the eleventh election—could bring the money and the men to a halt.33
Federalism offered another check against national military despotism. Despite the union’s vastly increased practical power—including the power to quell insurrections, secessions, and coups at the state level—states would not be defenseless. For sound geostrategic reasons, the Constitution did prevent states from keeping foreign mercenaries or any other body of permanent professional “Troops … in time of Peace” without “the Consent of Congress.” But local militias composed of state citizens serving part-time fell outside this prohibition. Indeed, the Constitution expressly charged states with “the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” While these militias, which would later figure prominently in the Second Amendment, were ultimately subject to nationalization in times of emergency, their loyalties were likely to be local. State governments would train these men, equip them, and appoint their officers. If central authorities tried to use a national standing army to suspend the Constitution and subjugate the people, state militias could spring into action, much as colonial governments had mobilized military resistance to George III in the mid-1770s.
In a pair of Federalist essays penned separately by Hamilton and Madison, Publius elaborated the argument that, in the highly improbable scenario of a national military despotism run amok, states could ride to the rescue. In a wholly national regime lacking independent state governments, “if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource.” But in the United States, a very different scenario could unfold. Should tyrannous national leaders attempt a military coup d’état, “the State governments, with the people on their side, would be able to repel the danger.… [The standing army] would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.… Local governments … could collect the national will and direct the national force.”34 The chief advantage of this latent force was that it would probably never be put to the test. The very existence of small but expandable militias organized by state governments could deter a large professional standing army organized by the national government from acting abusively—much as a would-be monopolist must take into account not only current competitors but also others poised to enter the market if prices rise too high.
By balancing military power between two levels of government, the American people would in theory retain greater control over both. The national government could put down any local coup or insurrection menacing the republican government of a single state or region, but any scheme of national tyranny could be thwarted by an alliance of local militias led by state governments, in the spirit of 1776. Thus, wrote Hamilton/Publius, “the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.”35
To be clear: Publius did not argue for a general right of state militias, or anyone else, to engage in armed resistance merely because they sincerely believed that national authorities were acting unwisely or even unconstitutionally. Ordinarily, the people’s remedies for allegedly improper or unconstitutional conduct would be political and legal—speeches, petitions, assemblies, elections, and lawsuits—with the ultimate decisions over good-faith disagreements to be rendered by the nation’s duly constituted civilian authorities in Congress, the executive branch, and federal courts. The scenario painted by Publius as the occasion for militia opposition was, by hypothesis, anything but ordinary. Rather, it was the extraordinary case of an attempted national coup. No political or legal remedies would exist in this situation. Presumably, national courts would have been shut down or, at best, their judgments would be unenforceable. Ballot boxes would be shut (or stuffed), critics muzzled (or worse). Whatever law existed would be martial law, enforced only by gun and sword. In such an extreme scenario of open usurpation—and only in such a scenario—the sole practicable remedy left to the people would involve recourse to arms.
Of course, this was hardly the situation faced by secessionists in early 1861. The national political channels remained open: Lincoln had won the presidency fairly and promised to hold honest elections on schedule—as he would in fact later do. So, too, the national courts in 1861 remained open. (If anything, the Taney Court stood as a shameless apologist for Southern interests.) Nor had the national military taken aggressive steps to threaten civilians. On the contrary, Southern insurrectionists struck first in attacking Fort Sumter. Confederate moderates defended secession by asserting that each state’s people retained the right to decide for themselves whether the federal compact had been breached, regardless of what the federal courts, Congress as a whole, a duly elected president, or the voters of other states sincerely believed. Other Confederates went even further, resting secession not on claims of federal wrongdoing, but rather on the sovereign right of each state populace to alter its government at any time for any reason—to withdraw from the Constitution as a nation might withdraw from a treaty it no longer deemed suitable. Both Confederate theories rested on a view of state sovereignty plainly inconsistent with the federal Constitution as explained by its supporters and understood by its skeptics in the great ratification debates of the late 1780s.
Later, we shall see how the Civil War experience gave birth to a transformed vision of the national army and the state militias, and how this transformed vision in turn enabled the Reconstruction Amendments to become the law of the land. The modern American Constitution properly respects the federal army more and celebrates state militias less than did the Founders’ Constitution. The Founders had seen the dangers of imperial redcoats at close range—close enough to see the whites of the soldiers’ eyes—but modern America stands on the shoulders of a later central army dressed in blue. It is largely due to state militias that the South was able to wage and almost win an unjustified and unconstitutional war of secession; and it is largely thanks to U. S. Grant’s central army that the Reconstruction Amendments were fairly adopted in a process that included Southern Unionists and Southern blacks.
Yet in its early years, the Founding vision served Americans—white Americans, at least—rather well. The federal government faced extra hurdles whenever it sought to authorize standing armies, and the president’s military powers were counterbalanced both horizontally by Congress and vertically by states. The result of all this, and of America’s unique geostrategic insulation from Old World armies, was that for much of her history, America lived free from a large standing army on home soil. Especially in the critical early years of the new republic, the absence of an imposing military structure helped Americans establish a strong tradition of civilian supremacy and military subordination. Other New World regimes south of the border have been haunted by the specters of military coups and crackdowns, while the United States has not. This freedom from fear of our own military—a freedom so pervasive that it seems as invisible as the air we breathe and as vast as the continent itself—ranks among our greatest blessings of liberty.
The concluding language of Article I enumerated specific prohibitions on federal and state power. Some of these specifics merely elaborated rules and principles implicit elsewhere in the document. Other language went further, and laid the conceptual foundations for what would later become the Bill of Rights and the Reconstruction Amendments.
Section 9 began its list of constitutional don’ts by guaranteeing that willing states (read: the Carolinas and Georgia)36 could continue to import foreign slaves until 1808 (and forever count them under the three-fifths clause), despite Congress’s otherwise plenary power to bar or tax foreign imports. The Deep South thus had a twenty-year window through which to hoard more slaves, with all the protections of a strong national government behind the importers and none of the risks of national prohibition to which all other importers were subject. With this special exemption, the Constitution risked a huge expansion of American slaveholding and blinked the horrors of the international slave trade, with its fresh enslavements of freeborn Africans and its hellish middle passage across the Atlantic. As part of the proslavery package, other language in section 9 forbade Congress from taxing domestic slavery out of existence via head taxes (“Capitation”) on slaves, and also forbade any congressional taxes on “Articles exported from any State.” Though formally applicable to all exported goods produced by all sorts of laborers, this rule primarily aimed to insulate the fruits of Southern slave labor—such as tobacco, rice, and indigo—from federal taxation.37
In the Virginia ratifying debates, Madison defended the 1808 clause as a short-term concession to bolster long-term defense. “The [Deep] Southern States would not have entered into the Union of America without the temporary permission of that trade; and if they were excluded from the Union, the consequences might be dreadful to them and to us.… Great as the evil [of the international slave trade] is, a dismemberment of the Union would be worse. If those states should disunite from the other states for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.” Northerner Oliver Ellsworth had said much the same thing at Philadelphia, warning that without this clause, “he was afraid we should lose two States, with such others as may be disposed to stand aloof,” with the result that America might “fly into a variety of shapes & directions, and most probably into several confederations and not without bloodshed.”38
Other provisions of sections 9 and 10 reflected national-security and geostrategic concerns even more directly, in keeping with the vision sketched out in the early Federalist essays. No federal officer would be allowed, without congressional consent, to accept any gift from foreign governments or potentates. Individual states would be barred from making treaties with foreign powers or making trouble for foreign ships; and no state, without congressional consent, would be allowed to “keep Troops, or Ships of War in time of Peace” or engage in any war of aggression. Most of these provisions had antecedents in the Articles of Confederation.
By 1787, many Americans understood that a president backed by a continental army of hirelings and a nationalized militia might at times be necessary to protect against invasions and insurrections.39 Nevertheless, the very thought of such vast power at the command of one man inspired dread; Revolutionary Americans had seen firsthand just how much havoc a large mercenary force could wreak upon civilians. Thus, section 9 piled additional military safeguards atop the ones provided in section 8. Reinforcing the special two-year limit on military spending, section 9 forbade the executive from dipping into the treasury on his own initiative, in the absence of a proper “Appropriation[] made by Law.” Another section 9 clause, sounding in both federalism and separation of powers, guaranteed that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” In the absence of any such extreme circumstance, courts would remain open to hear all challenges to the lawfulness of executive detentions.
These courts would include state tribunals, unless Congress chose to create federal courts with exclusive jurisdiction to hear federal habeas cases. As a practical and constitutional matter, the Supreme Court could hear only a very limited set of cases while sitting in its original (trial) jurisdiction. Stationary in the national seat, the high court would mostly hear appeals from cases arising elsewhere. Any widespread executive effort to detain persons illegally could be countered only by courts scattered throughout the land. Since the Constitution nowhere required the creation of federal trial courts in the hinterlands, the crucial trial courts might well be state courts of general jurisdiction, armed with traditional common-law powers, including authority to issue writs of habeas corpus. Under this Great Writ, judges could scrutinize bodily detentions and order the release of persons deemed to be unlawfully confined.
It was this preexisting state/common-law writ that section 9 protected against undue suspension, thus confirming that state governments, via their courts, could help to prevent federal lawlessness—precisely as Hamilton/Publius had explained in a related context when he declared that if the federal government invaded the people’s rights, Americans could turn to states as “instrument[s] of redress.”40 Any state judge issuing a habeas writ against a lawless president would not be defying but rather enforcing the Constitution’s supremacy clause, which of course made the Constitution itself the supreme law—supreme even over a contrary presidential edict. However, a president in such a scenario would likely contend that he had been acting within the scope of the suspension clause in particular and the Constitution more generally. Ultimately, federal judges would have the right to decide these federal legal issues on appeal, by dint of their Article III authority to review all state court decisions arising under the Constitution. State trial courts would be the first word but not the last word in this judicial conversation.
Nothing in the habeas clause, however, specified whether suspension required prior congressional approval. In 1861, Lincoln powerfully argued that the logic of events might at times demand temporary unilateral presidential action. Congress might not be in session when rebels attacked or invaders landed (as it was not when Fort Sumter came under unprovoked bombardment), and the rebellion or invasion might physically prevent Congress from assembling when summoned. As America’s chief officer, always on deck and oath-bound to keep the constitutional ship afloat, a president could properly suspend habeas and take other emergency actions so long as he received legislative authorization as soon as Congress could be safely convened.
Or so Lincoln argued in defense of a wide range of military measures he undertook before Congress could meet in July 1861. In his view, the placement of the nonsuspension clause in Congress’s Article I rather than the president’s Article II did not impliedly require prior congressional approval. Rather, the Article I location of the clause simply confirmed that ultimately the decision was Congress’s. The president could merely act temporarily, as Congress’s faithful on-duty servant maintaining the pre-rebellion status quo precisely in order to preserve Congress’s options. Even Lincoln’s sensible claim of temporary-suspension power went beyond the traditional authority of British monarchs—a point stressed by Chief Justice Taney, speaking only for himself, in an 1861 in-chambers habeas ruling that sharply challenged Lincoln’s suspension policy. Taney’s ringing rhetoric slighted the fact that presidents were subject to constitutional checks—most important, front-end election and the ultimate threat of impeachment—that rendered them more trustworthy than hereditary kings. In response, Lincoln proceeded to disregard Taney’s solo ruling, thereby challenging Taney’s very jurisdiction over the matter. Jurisdictional technicalities aside, Lincoln insisted that his suspension of the writ was necessary to safeguard the very existence of the Union, its Constitution, and the great mass of other laws that he had sworn to uphold.41
In addition to the clauses addressing military threats from home and abroad, other provisions of sections 9 and 10 aimed at ending incipient economic warfare among the states and related forms of interstate exploitation. To prevent New York City and Philadelphia (to take two notorious examples) from unfairly taxing unrepresented out-of-staters sending or receiving goods through these ports, states and localities would generally be banned from unilaterally imposing revenue-seeking duties on imports and exports. The ban would also avoid state competition with, or frustration of, federal import duties and tariff policies. On the opposite side of the ledger, New York City, Philadelphia, and other financial centers would benefit from section 10 rules barring states from inflating currency or otherwise abrogating creditors’ rights under preexisting contracts. Through these rules, the Constitution prevented agrarian states from catering to the mass of in-state debtors at the expense of out-of-state creditors and banks.42 Under the Confederation, several states had used debt-relief laws to impose a tax of sorts on unrepresented citizens of sister states and, even worse, foreign creditors. Unless such shortsighted state policies could be stopped, foreign lenders might well urge their home governments to retaliate economically, diplomatically, or militarily, and thereby put all America at risk.
BUT SECTION 10’S RULES proscribing states from “coin[ing] Money; emit[ting] Bills of Credit; mak[ing] any Thing but gold and silver Coin a Tender in Payment of Debts; [and] pass[ing] any … Law impairing the Obligation of Contracts” drove even deeper. In both letter and spirit, they worked not merely to prevent state legislatures from exploiting citizens of sister states and foreigners, but also to prevent state lawmakers from ganging up on a minority of their own citizens—in-state creditors, to be specific.43 These were the document’s most distinctively Madisonian provisions, reflecting his prediction that a Congress brimming with enlightened continental statesmen would be wiser and juster than state legislatures apt to be populated by small-minded and shortsighted demagogues. In keeping with this vision of differential trustworthiness, the document gave Congress explicit authority to coin money and relieve insolvent debtors via federal bankruptcy laws that could apply even when all the creditors came from the debtor’s state. Nowhere did the document specify the precise gold or silver content of federal coinage or prohibit, say, federal copper coins—or federal paper money or bills of credit for that matter. All these were rather pointed omissions, given that the Confederation Congress had issued paper currency by the bushel to keep America afloat during the Revolutionary War.
As with Madison’s unsuccessful proposed congressional negative on state laws, the section 10 cluster of economic provisions aimed to give the new continental government authority that had once been wielded by the old empire: In 1764, Parliament had imposed a general ban on colonial laws that made paper money or bills of credit legal tender. But this Currency Act had provoked broad resentment among agrarian interests across the colonies, and even Parliament had never imposed a sweeping ban on all impairments of existing contracts. Unsurprisingly, the section 10 economic clauses—and the contracts clause in particular—sparked fierce criticism from Anti-Federalists during the ratification debates. At a theoretical level, the contracts clause represented an unprecedented continental intrusion into a traditionally “internal” local matter. Skeptics and traditionalists could accept the need for continental rules concerning genuinely interstate and international affairs, but here the federal Constitution would in some cases insinuate itself between a state and its own citizens. As a practical matter, the clause fueled the strong suspicion aroused by a too-small House—and by the very eminence of the Philadelphia draftsmen themselves—that the proposed Constitution was at heart an aristocratic scheme favoring nabobs and grandees, despite its remarkable array of populist provisions. In a private letter to Jefferson penned after eleven states had ratified, Madison confided that “the articles relating to Treaties [which gave the federal government power to protect the interests of British creditors against American debtors], to paper money, and to contracts, created more enemies than all the errors in the System positive & negative put together.”44
IT REMAINS TO CONSIDER three other section 10 provisions that further limited states in matters of internal governance: “No State shall … pass any Bill of Attainder, ex post facto Law, … or grant any Title of Nobility.” These provisions, too, reflected distrust of unbridled state assemblies, but distrust on these three topics applied against Congress as well. Section 9 made clear that “No Bill of Attainder or ex post facto Law shall be passed” by Congress, and that “No Title of Nobility shall be granted by the United States.” With this short list of don’ts protecting individual liberty and republican equality against Congress and the states, the Constitution offered, in miniature, a stylistic and conceptual template for the later Bill of Rights and Reconstruction Amendments.
The bans on attainders and ex post facto laws had deep roots in rule-of-law ideology. As we have seen, the basic tripartite structure of the federal government reflected a strong commitment to the ideal that legislation, at least if punitive, should be general and prospective. Otherwise, a legislature could simply impose penalties upon political opponents by name, and no one, howsoever virtuous his conduct, would be safe. The ban on bills of attainder prohibited one specific type of abuse, under which a legislature purported to name a particular individual and pronounce him or her guilty of a capital offense. The English Parliament had passed many such bills—perhaps most notoriously in 1641, when it legislatively decreed death for Thomas Wentworth, the Earl of Strafford, an influential Crown advisor. In the federal Constitution, the spirit animating the ban on bills of attainder extended to all laws heaping scorn or punishment upon specifically named individuals.45 The companion ban on ex post facto laws—retroactive statutes making conduct that was innocent when committed criminally punishable—aimed at preventing a similar legislative abuse. In the absence of the companion ban, a legislature seeking to target a specific victim could simply reverse engineer an attainder by substituting a precise description of the victim’s past (and wholly innocent) conduct for his proper name. The gross injustice of such legislative trickery bordering on lawlessness prompted the Federalists to ban all such practices, state as well as federal. Prior to this universalization, roughly half of the state constitutions had explicitly condemned ex post facto laws and/or restricted bills of attainder.46
If attainders and ex post facto laws warped proper rules of dishonor and punishment, titles of nobility warped republican principles of honor and reward.47 Citizens of the New World deserved to be judged on the basis of their behavior, not their birth status. In a national government deriving its authority from the people and opening itself to all candidates (at least among adult male citizens), Congress had no “proper” power to create hereditary posts. As the attainder and ex-post-facto clauses buttressed separation of powers and the rule of law, so the nobility clauses reinforced America’s basic republican structure.
Article I’s two antinobility clauses grew directly out of the Articles of Confederation, which had barred both the United States and individual states from conferring aristocratic titles. Nowhere else had the Confederation so directly regulated states’ internal governance. This early antiaristocracy language thus attests to the depth of Revolutionary Americans’ commitment to maintain a New World order free from the oppressive weight of the Old World order. Prior to 1776, very few English noblemen had crossed the water to lord over the colonists, and most Americans wanted to keep things that way. In the mid-1780s, veteran Revolutionary army officers (as distinct from common soldiers) formed a private military honor society, the Order of the Cincinnati, and proceeded to make the organization hereditary, with memberships to be handed down from fathers to eldest sons. Republican purists were quick to condemn this proto-peerage. As Sam Adams saw the matter, the organization was “as rapid a Stride towards an hereditary Military Nobility as was ever made in so short a Time.”48
In two widely separated Federalist essays, Madison and Hamilton explicitly linked the nobility clauses to the Constitution’s general republican ethos. According to Madison, the “most decisive” proof “of the republican complexion of this system … [is] found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guaranty of the republican form to each of the latter.” Hamilton concurred: The “prohibition of titles of nobility … may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.”49
In theory, the bans on state bills of attainder, ex post facto laws, and titles of nobility, along with the Article IV republican-government clause, could have had radical implications for freedom and equality in America. Were not slaves in effect punished simply for who they were at birth in defiance of the anti-attainder ideal? Was not South Carolina, a land of light-skinned lords and dark-skinned serfs, in violation of the spirit of the antinobility clause? The candid answer to such questions was that the Constitution’s general structure, when read closely, evinced indifference (at best) to the liberty and equality claims of slaves. Essentially, the document excluded such men, women, and children, born and unborn, from “the People” whose general welfare the Preamble pledged to promote.
Yet even if bondsmen lay beyond the Constitution’s protective compass, free blacks could make a strong textual and historical case for equal inclusion. Not one word of the document, and virtually nothing in its surrounding enactment history, suggested that free blacks should be subordinated to free whites. Alas, throughout the antebellum era, free blacks were stigmatized and stained by laws, state and federal, that punished them for who they were and allowed whites to lord over them.
Though antebellum officialdom showed little interest in deploying the letter and spirit of sections 9 and 10 on behalf of free colored persons, these sections fed the legal imaginations of other nineteenth-century Americans more committed to liberty and justice for all. If section 9 could secure the federal “Privilege” of habeas corpus against a powerful president, perhaps a new amendment might broaden this and other federal “Privileges” against powerful state officers. What one generation had done to protect the bodily liberty of free whites against military despotism, another generation might redo to safeguard the bodily liberty of freed blacks against forced labor. If the Constitution needed to go further in reining in states than section 10 had gone, perhaps a new amendment could reiterate the “No State shall” language of section 10 while expanding the scope of its prohibitions. If the bans on state impairments of contracts could be used to help powerful creditors, perhaps other language might protect less powerful constituencies at even greater risk of state demagoguery and injustice. If, as the paper-money issue revealed, Congress could sometimes be trusted when state legislatures could not, perhaps a new amendment should give Congress explicit authority, alongside the federal judiciary, to enforce state compliance with the dictates of fairness.
As will become clearer when we focus on the Reconstruction Amendments, mid-nineteenth-century reformers did indeed creatively adapt some of the words and concepts of sections 9 and 10 to end abuses that leaped onto the national stage in the antebellum and Civil War eras. When Americans turned to the long-overdue task of righting the worst wrongs of their founding fathers and grandfathers, several aspects of sections 9 and 10 would give them a good place to start.
a Federal power over genuinely interstate and international affairs lay at the heart of the plan approved by the Philadelphia delegates. According to the Convention’s general instructions to the midsummer Committee of Detail, which took upon itself the task of translating these instructions into the specific enumerations of Article I, Congress was to enjoy authority to “legislate in all Cases for the general Interests of the Union, and also in those Cases to which the States are separately incompetent, or in which the Harmony of the United States may be interrupted by the Exercise of individual Legislation.” Farrand’s Records, 2:131–32. It also bears notice that the First Congress enacted a statute regulating noneconomic interactions and altercations—“intercourse”—with Indians; see An Act to regulate trade and intercourse with the Indian tribes, July 22, 1790, 1 Stat. 137. Section 5 of this act dealt with crimes—whether economic or not—committed by Americans on Indian lands.
b Though Article I did not explicitly enumerate the point, it also implicitedly gave each house of Congress broad powers of investigation and oversight—powers that had historically been exercised by parliaments and legislatures on both sides of the Atlantic and that were necessary and proper adjuncts to Congress’s enumerated powers to enact legislation, appropriate funds, conduct impeachments, and propose constitutional amendments. (We shall consider Congress’s impeachment role in Chapter 5, and its amendment powers in Chapter 8.)
c The Philadelphia draftsmen used the phrase “declare War” rather than “make war” so as to empower the president to act unilaterally to “repel sudden attacks.” Farrand’s Records, 2:318–19 (Madison and Gerry). See also U.S. Const. art. I sect. 10, para. 3 (generally prohibiting states from “engag[ing] in War” without congressional consent, but making an exception if a state is “actually invaded, or in such imminent Danger as will not admit of delay”).