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Exploring the Constitution, Part 7: Congress is Created by Article I

Copyright 1997 by David W. Neuendorf

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In a republican form of government, the real power lies in the legislature elected to represent the people. Our republic is no different from others in that respect. When the Founders laid out the blueprint for our government in the Constitution, the first thing they did, in Article I Section 1, was to specify that "All legislative Powers herein granted shall be vested in a Congress of the United States..."

Most of Article I consists of structural and procedural details for the Senate and the House of Representatives. While all parts of the Article are necessary, there are a few points that bear extra and repeated emphasis. These have to do with the powers granted, and the limitations placed upon the Congress. It is especially important in this day of untrammeled government power to understand the exact role intended for Congress.

Section 8 lists seventeen general powers granted to Congress by the people through the Constitution. An eighteenth summary power is "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers..." and any other powers granted to the government elsewhere in the document. Section 7 also gives Congress the power to judge the actions of any official through impeachment in the House and trial in the Senate. Section 9 similarly lists eight powers which are specifically denied to Congress (and in some cases the other branches of government). Finally, Section 10 places a few specific limitations on the actions of the individual states.

The key to understanding Article I, or the rest of the Constitution for that matter, is that it consists of a grant of specific, limited powers to the institutions that it creates. Ignorant or willful misunderstanding of this principle has been the source of most of the grief we have experienced as a nation during the twentieth century.

Just what are the powers granted to Congress in Article I? Financial powers include taxation, borrowing, coining money (and setting up systems of valuation for money, and weights and measures), and punishment of counterfeiters. Military powers include declaring war, creating and regulating an army and navy, regulating and calling the militia to active duty. Other powers include regulating commerce, naturalization of immigrants, bankruptcy, and a seat of government (which turned out to be the District of Columbia); setting up mail delivery, patent and copyright protection, and federal courts; and defining and punishing international crimes (such as those committed on the high seas).

The common thread running through the specific powers granted here is that they pertain to matters outside the natural jurisdiction of individual states. As James Madison explained in Federalist Paper Number 45, "The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State."

Conspicuously absent in Article I Section 8, as in other parts of the Constitution, are most of the powers now being exercised by Congress. Try to find anything about providing income for the poor, or medical or retirement insurance; funding education; printing paper money; propping up foreign governments with American tax money; regulating safety in the workplace; or tens of thousands of other federal enterprises. The short list of enumerated powers just doesnít include those things. They may be among the "numerous and indefinite" powers of the states (though the state constitutions have something to say about that as well), but they arenít among the "few and defined" powers of Congress.

Power-hungry members of Congress are always looking for a loophole in the Constitution that would allow them to usurp powers not delegated to them. Next to the "general welfare" clause discussed in the previous installment of this series, the commerce clause has been the most abused for this purpose. That will be the topic of the next installment. Meanwhile, why not try to compare the enumerated powers with the actions of Congress that we read about every day in our newspapers? I think you will be surprised at how far Congress has gone beyond its mandate.