The U.S. Constitution, part 3

In part one of this article, I looked at what the U.S. constitution says in article I, sections 1-5. These are the first 5 sections of the legislative section of the U.S. Constitution. So, today, I saw a story talking about several members of Congress going to visit Fidel Castro in Cuba and discussing policy, etc. Now, I've never been comfortable with Congress members or congressional leaders doing this. I don't think they have the constitutional authority. I didn't like it when Dennis Hastert went to Colombia under Clinton, I really didn't like it when Nancy Pelosi went to Syria under Bush and I don't like it that these Congress members decided to go to Cuba. At least Colombia and Syria are not technically considered enemies of the United States. Cuba is, so this act is even more egregious than either of the previous ones I stated. So, let's continue with our look at the constitution and see if Congress does indeed have the power to meet with foreign leaders on behalf of the country. So, this article will be on sections 8-10 of article 1. The ultimate question above needs to be answered in one of those three sections.

Section 8 - Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
This gives Congress the power to tax and through some means to gain income for the federal government and provide an army/navy, whatever, to defend the country. The next statement has widely been used to justify social programs and welfare programs, but I'd argue that is an absurd over-generalization of reality. After all, this is really talking about how Congress can provide a means of income for the country and that it should be applied to all the several states equally, having nothing to do with welfare or social security, etc. However, that is for another post.

To borrow money on the credit of the United States;
Wow, Congress really does have the right to borrow against our children's future. I already knew this and therefore, while I disagree with the 700 billion dollar bailout, it is the right of Congress to vote on these things. However, AIG was not voted on by Congress, nor were many other bailouts in the past, so we've had a lot of constitutional violations in this regard.

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To regulate commerce with foreign countries, the states and Indian tribes huh? That isn't the same thing as traveling to a foreign country to meet with a head of state. This is why Congress created the Department of Commerce or Trade. It isn't the same.

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
So, Congress determines who can and can't immigrate and under what rules. Seems like if they really wanted to change this, all they have to do is pass legislation to do it. Guess their screaming to change it is really just hot air. The other thing here is about setting rules for bankruptcies. Of course, I guess that doesn't mean that Congress has to follow their own rules, after all, what with the bailouts, they help companies avoid bankruptcy that should be bankrupt.

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
Well, to make money. We've got that covered. But wait, did Congress really give the federal reserve the right to print money as it sees fit without permission from Congress? If they did, which seems like they did, then they were stupid.

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
Hmm, the point of avoiding counterfeiters is so that money doesn't get into circulation that doesn't belong there. Maybe we should be going after the federal reserve for all the money they've been printing recently. Over 2 trillion dollars just this year, in case you hadn't heard.

To establish Post Offices and Post Roads;
Huh, roads and post offices. Well, seems like the post office should be part of the government after all. Again I knew this, but I've had a bunch of people tell me recently that the post office shouldn't be funded by tax dollars. This implies otherwise.

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;
Hey, copyright law! Woohoo! The exclusive lobbying effort of Disney. Ever notice how copyright gets extended every time Mickey Mouse gets close to the public domain?

To constitute Tribunals inferior to the supreme Court;
The federal court system. Perfectly acceptable. This is also the constitutional requirement giving Congress the power to establish courts to try foreign criminals, thus those at Guantanamo. The Supreme Court got this one right and so Congress established a court. So, why is the current administration now saying that a duly constituted court, set by Congress in direct repudiation to the previous administration is no longer effective and useful but that all these cases should be "reexamined"? Hmm... I do hope it is more than just not liking the previous administration. After all, if Congress doesn't like the court they set up for this, guess who has the right to change it. The President? Nope, they do.

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To enforce the laws of nations and the seas through defining punishments and penalties. They do this pretty good I suppose.

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
Over the last 50 years, Congress seems to have forgotten that this power belongs to them. Through the actions of various administrations, this power has now been transferred to the President, largely, without a constitutional amendment.

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
Raise and support armies. Hmm... this suggests that maybe a draft is constitutional, but who really needs it as long as we foster a love of country in our children, we will always have enough brave men and women willing to volunteer.

To provide and maintain a Navy;
Well, the same power as in the army. Interestingly, we now also have an air force, which I suppose technically should have required a constitutional amendment for Congreess to actually have the power to raise one, but who really cares about that pesky requirement these days.

To make Rules for the Government and Regulation of the land and naval Forces;
Ooh, Congress makes rules for the land and naval forces! This I didn't remember and it sort of takes the blame off the Presidents for the whole "no gays in the military" deal eh? After all, the President doesn't have the power to make rules for the government and regulation of the armed forces, does he. Therefore, this is a Congressional issue, not a Presidential one. So again, it seems that it is Congress that isn't really interested in fixing this issue because all they have to do is mandate it. Period.

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
So the Congress has the power to call up the militias to support the law and repel invasion. This is really interesting because it supports the concept that there can't be military forces inside the U.S., but should rather be militias, which under some definitions are state run military organizations or are also loose citizen organizations. In fact, the use of militia is intentional here because the founders were very afraid of having standing armies on our home soil, so this power is NOT the military.

To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Again, this power suggests that the militia is somehow an institution of the individual states, not of the federal government and that the federal government is to pay for organizing and arming, etc. the militia if they want to use it.

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
The power to Congress to exercise authority over the District of Columbia and other federal property throughout the various states. I still have to think it would require a constitutional amendment to give full representation to DC in Congress, but apparently the current Congress doesn't think so.

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 is commonly known as the necessary and proper clause and has most commonly been used to justify legislation that supported carrying out the above stated powers or the occasional unforseen power listed nowhere else in the Constitution. This clause has now been horribly abused and has basically now been interpreted to give Congress the power to do whatever the heck it wants. A horrible constitutional abuse.

So, the power vested in Congress do NOT give it the power to negotiate or visit with foreign leaders. Huh. So, what about the limits to Congressional power in section 9.

Section 9 - Limits on Congress

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
Ooh, here's one of the stains on the Constitution developed by well meaning men trying to form a unified, strong country rather than end up as weak separate parts. It expired as of 1808, so thus became irrelevant. There are other stains not so easy to dismiss.

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.
Okay, so this has only ever happened when President Lincoln suspended the writ during the Civil War. The thing is this. This is listed as a limit on the power of Congress, meaning only Congress can suspend the writ and only in times of rebellion or invasion, etc. That is what it says to me. This means Lincoln was in violation by using Presidential authority to suspend the writ. It is Congress that can suspend it and only Congress and only in the instances specifically stated. Anything else is unacceptable.

No Bill of Attainder or ex post facto Law shall be passed.
I recently dealth with this in another post, but Congress has been pretty good about not violating this one, at least until recently.

(No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.) (Section in parentheses clarified by the 16th Amendment.)
The "clarification" stated in the 16th amendment is the income tax. Before that, it was just that no direct taxes could be levied on us, at least that was the common understanding.

No Tax or Duty shall be laid on Articles exported from any State.
Oh, the states can't tax each other and the federal government can't tax interstate commerce. Interesting.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
This is very similar to the above, but referencing the law of the seas, etc. It basically comes out of abuses by England against the colonies where they tried to make colonial products go through England before they could go anywhere else, or else they'd be taxed. This seemed extremely inefficient to people in Boston who wanted to ship products in and out of the Carribean, thus this part of the constitution.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.
No money can be paid out by the treasury without a law justifying it huh? Well this has been violated constantly, especially with any bailout money not part of the 700 billion actually approved by Congress.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.
Okay, I don't think this one has really been a problem up to now. Any disagreement?

So, Congress has a few limits on its power, but nothing there suggests they have any foreign policy power whatsoever either. Huh?

Section 10 - Powers prohibited of States

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
So the states can't do anything that falls within the powers of Congress stated above. In fact, this clearly prohibits actions taken by local communities recently and during the Great Depression by issuing script or alternative currencies. However, I want to mention the prohibition on laws impairing the obligation of contracts. It seems the attorney general of Connecticut is in the wrong, constitutionally, when he is saying he wants to go after the bonuses of the AIG executives. It may be popular, but it is clearly unconstitutional.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.
So the states can't collect taxes on imports and exports without consent of Congress and any monies so collected go to the U.S. treasury, not the state. Pretty straightforward, but completely ignored today.

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
This prohibits states from raising and keeping their own militaries unless in time of war or invasion. Pretty clear, and clearly meant to mean military, not militia, which is not exactly the same thing. Good, we don't need the states attacking each other, eh? Oh wait.

At any rate, this completes article I or the U.S. Constitution, which defines the powers of Congress, or the legislative branch. Nowhere in these sections, or in the sections I've previously dealth with does the Constitution provide Congress any kind of foreign policy negotiating authority. Therefore, the 6 or 7 democratic Congress members had no business going down and talking with Fidel, just as Hastert and Pelosi had no business going on their "official" trips. Every instance of this is and should be considered an abuse of power. Period.