The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

Powers Denied to Congress

These great grants of power to the Congress had to be balanced by certain strong restraints on federal authority if the people of the thirteen States were to be persuaded to ratify the Constitution. So Section 9 of Article I sets definite limits on what Congress may do.

The first-listed restraint, which seems odd to us today, is that Congress might not forbid the importation of slaves until 1808. This temporary provision is followed by guarantees of ancient rights and privileges derived from the British common law and constitution. The first of these is the privilege of habeas corpus, a Latin term meaning “you have the body.” A writ of habeas corpus is an order issued by a court to an arresting officer, directing him to bring a prisoner before the court. If confinement was improper, the judge will order his release. The writ of habeas corpus, one of the most ancient liberties inherited from England, is wholly procedural in character and defines no rights. But it offers persons charged with a crime one of their most important protections against illegal arrest and confinement, and serves as an important check on the illegal usurpation of power by the executive. The writ has been used in England and the United States to test the legality of virtually any confinement, including detention by military authorities. Under the Constitution, Congress may suspend this privilege in times of rebellion or invasion. During the Civil War, President Lincoln suspended the writ without Congressional authorization, and was much criticized for his action.

The second guarantee is protection against bills of attainder. This is a legislative act designed to punish a particular individual without a jury trial. Congress can determine what conduct shall be considered a federal crime, but no one can be punished until after a jury trial. This guarantee is an important check on the illegal usurpation of power by the legislature. The prohibition was originally adopted in England to outlaw the practice of legislative punishment, whereby individuals could be condemned to death by a special act of Parliament. Legislative acts inflicting lesser punishments are called bills of “pains and penalties.” As interpreted by the Supreme Court, the prohibition against bills of attainder extends to all legislative acts, “no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial.”

The third guarantee, which is also a check on the legislature inherited from English law, is protection against ex post facto laws. These are retrospective or retroactive laws which impose criminal penalties for acts that were not illegal when they were performed. Over the years, the Supreme Court has interpreted the prohibition to include any law which operates to the disadvantage of an individual accused of a crime committed before the law was passed. This includes laws that change the punishment and inflict a greater penalty than the one affixed to the crime when it was committed, and laws that alter the rules of evidence so as to permit less or different evidence for a conviction than was required at the time the crime was committed. The ex post facto clause was apparently intended by the Framers to apply to retrospective laws devaluing property rights, but very early in our history the Supreme Court held in Calder v. Bull (1798) that the restriction applies only to criminal laws.

Section 9 also forbids Congress to levy direct taxes unless in proportion to population; to tax exports; or to favor the ports or shipping of one State over the ports or shipping of another State. Federal officials are forbidden from drawing money from the Treasury except in accordance with Congress’s appropriation of funds. Finally, Section 9 forbids Congress to grant titles of nobility. Nor can anyone connected with the Federal administration accept gifts, or titles, or other favors from foreign governments without Congressional consent.