Jonah Patel
The US Constitution, signed in 1787 and ratified in 1788, outlines several actions that are forbidden by law. These include prohibiting the migration or importation of persons by Congress before 1808, suspending the privilege of the writ of habeas corpus except in cases of rebellion or invasion, passing any bill of attainder or ex post facto law, and imposing direct taxes without proportionality to the census. Additionally, it forbids granting titles of nobility, accepting presents or titles from foreign states without congressional consent, and giving preference to specific state ports in regulations of commerce or revenue. Cruel and unusual punishment, excessive fines, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are also prohibited. The Constitution serves as a foundational document for establishing justice, ensuring domestic tranquility, and securing individual liberties.
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What You'll Learn
Creating ex post facto laws
Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws). The US Constitution states that "No Bill of Attainder [or] ex post facto Law shall be passed".
In a legal context, ex post facto typically refers to a criminal statute that punishes actions retroactively, thereby criminalising conduct that was legal when originally performed. Ex post facto laws are prohibited by Article 7 of the European Convention on Human Rights, Article 15(1) of the International Covenant on Civil and Political Rights, and Article 9 of the American Convention on Human Rights.
The US Supreme Court has defined the scope of the constitutional ex post facto through the following restrictions: "any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with a crime of any defence available according to law at the time when the act was committed, is prohibited as ex post facto".
The Supreme Court has denied ex post facto claims when it has found that a law is not ex post facto as applied to the challenger, even when the law might be ex post facto as applied to others not before the Court. For example, in Jaehne, a law that might be void as applied to pre-enactment offences was not void as applied to post-enactment offences.
In some nations that follow the Westminster system of government, ex post facto laws may be possible due to the doctrine of parliamentary supremacy. In a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited or allowed, and this provision may be general or specific. For example, Article 29 of the Constitution of Albania explicitly allows retroactive effect for laws that alleviate possible punishments.
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Passing bills of attainder
The United States Constitution forbids legislative bills of attainder at both the federal and state levels. Article I, Section 9, Clause 3 of the US Constitution states that "No Bill of Attainder or ex Post Facto Law shall be passed". This clause is reinforced by Article I, Section 10, which prohibits bills of attainder by the states.
A bill of attainder is a law that imposes criminal punishment on specific individuals or groups for actions they previously took, without providing the protections of a judicial trial. In other words, it is a legislative act that determines guilt and inflicts punishment without due process. The Supreme Court has held that "people must have notice of the possible criminal penalties for their actions at the time of the act".
The prohibition against bills of attainder serves two important purposes. Firstly, it reinforces the separation of powers by preventing the legislature from performing judicial functions. By enacting a bill of attainder, the legislature assumes the role of the judiciary by determining guilt and imposing punishment without a trial. Secondly, it embodies the concept of due process, which is protected by the Fifth Amendment to the Constitution.
The Supreme Court has interpreted the Bill of Attainder Clause broadly, banning not only legislation imposing a death sentence but also other forms of punishment inflicted on specific persons or groups without a trial. The Court has emphasised that legislation does not violate the clause simply by placing legal burdens on specific individuals or groups. However, if the law inflicts punishment and targets identifiable individuals or groups who would otherwise have judicial protections, it may be deemed a bill of attainder.
The Bill of Attainder Clause has been invoked in several Supreme Court cases, including United States v. Brown (1965), where a statute making it a crime for a member of the Communist Party to serve in a labour union was held void as a bill of attainder. In another case, Cummings v. Missouri (1867), a statute requiring individuals to take an oath that they had not participated in the Confederate rebellion before practising certain professions was struck down as a bill of attainder, as it inflicted punishment on a specific group.
While no bills of attainder have been passed in the UK since 1820, they have been prohibited in the US Constitution since 1789 due to American dissatisfaction with British attainder laws. This prohibition reflects the importance attached to the issue by the Framers of the Constitution.
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Granting titles of nobility
The Titles of Nobility Amendment, which forbids the US government from granting titles of nobility, was introduced in the Senate by Democratic-Republican Senator Philip Reed of Maryland and passed on April 27, 1810. It was ratified by 11 states by early 1812, but it was rejected by Virginia, New York, Connecticut, and Rhode Island. At the time, ratification by 13 states was required for it to become part of the Constitution, and no other state legislature has ratified it since.
The amendment was mistakenly included as the "Thirteenth Amendment" in some early 19th-century printings of the Constitution, including in a five-volume set titled "Laws of the United States" published by Bioren and Duane in 1815. This error was copied by some compilers of other books, and the amendment was occasionally printed as if it had been adopted, even after the US House of Representatives became aware of the mistake in December 1817.
The Titles of Nobility Amendment has been interpreted as prohibiting the government from granting any badge of ignobility to a citizen at birth or from conferring indices of nobility, such as an enduring grant of advantage or wealth to a closed class of individuals. This interpretation is in tension with the system of chattel slavery that prevailed in the American South when the Constitution was ratified, as there were effectively lords and serfs in the region, notwithstanding the Nobility Clauses.
The Titles of Nobility Clause complements other constitutional provisions, such as the Thirteenth, Fourteenth, and Fifteenth Amendments, which prohibit invidious governmental distinctions between classes of American citizens. It also aligns with the Articles of Confederation, which state that "nor shall the United States in Congress assembled, or any of them, grant any title of nobility."
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Coining money
The Constitution of the United States grants Congress the exclusive authority to coin money and regulate the value of currency. Article I, Section 8, Clause 5 of the Constitution outlines Congress's power to "coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures". This provision ensures that only Congress has the authority to mint money and determine its value.
The exclusivity of this power is further emphasised in Article I, Section 10, Clause 1, which explicitly prohibits states from coining money. The Supreme Court has consistently upheld this interpretation, recognising Congress's coinage power as exclusive. This exclusivity is designed to prevent the open-ended use of state credit and shield other states from the potential economic fallout of a single state's fiscal policies.
Congress's power to coin money also includes the authority to maintain the coinage as a medium of exchange within the country and prevent its diversion to other uses, such as defacement, melting, or exportation. Additionally, Congress has the power to regulate and punish counterfeiting of the currency.
Furthermore, Congress has the authority to abrogate clauses in pre-existing private contracts that specify payment in gold coin or allow bondholders to elect to be paid in foreign currencies. However, the Supreme Court has ruled that such abrogations by Congress are unconstitutional when dealing with obligations of the United States, as it would render those obligations illusory.
In summary, the Constitution of the United States vests exclusive power in Congress to coin money, regulate its value, and manage all aspects of the nation's currency. This power includes maintaining the integrity of the coinage as a medium of exchange and preventing counterfeiting.
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Prohibiting migration or importation of people
Article I, Section 9 of the US Constitution, also known as the Slave Trade Clause, prohibited the federal government from banning the migration or importation of people, understood at the time to mean primarily enslaved African persons, until 1808. This was a compromise between Southern states, where slavery was pivotal to the economy, and states where the abolition of slavery had been accomplished or was contemplated.
The relevant part of Article I, Section 9 reads:
> 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.
The Constitution's primary goal is to create a system of government for the nation and a process through which its citizens establish the rules governing people within the territory. The power to regulate immigration is essential to a nation's self-preservation and is inherent in the Constitution's creation of a sovereign nation.
Federal courts have since reserved a narrow ground of review in a few exclusion cases. For example, in Abourezk v. Reagan (D.C. Cir. 1986), it was ruled that the government could exclude non-citizens who are members of a Communist or anarchist organisation, based on projected engagement in activities prejudicial to the public interest. However, the reason for the threat to public interest must be independent of membership in a proscribed organisation.
Article I, Section 9 also prohibits Congress from legislating in certain areas, such as banning the importation of slaves before 1808, and it guarantees rights to those accused of crimes. It specifically prohibits ex post facto laws—criminal laws that make an action illegal after someone has already taken it.
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Frequently asked questions
The US Constitution forbids a variety of actions, including:
- Congress from assembling less than once a year
- The suspension of the Writ of Habeas Corpus, except in cases of rebellion or invasion
- The passing of a Bill of Attainder or ex post facto Law
- The granting of titles of nobility
- The drawing of money from the treasury without consequence of appropriations made by law
The Florida Constitution forbids:
- Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses
- Any method of execution not prohibited by the US Constitution
- Administrative agencies from imposing a sentence of imprisonment or any other penalty not provided by law
The US Constitution forbids:
- Giving preference to the ports of one state over another in any regulation of commerce or revenue
- Vessels bound to or from one state to be obliged to enter, clear, or pay duties in another state
