Omar Bennett
The US Constitution, signed in 1787 and ratified in 1788, is a document that outlines the powers and responsibilities of the federal government and establishes basic principles for the country's legislative, executive, and judicial branches. It consists of a preamble, seven articles, and 27 amendments, each of which outlines specific actions that are permitted or forbidden by the government and its officials. From prohibiting certain laws from being passed to outlining the powers of Congress and the President, the Constitution serves as a framework for governing the United States and protecting the rights and liberties of its citizens.
Actions Forbidden by the US Constitution
| Characteristics | Values |
|---|---|
| Creating a law ex post facto | Borrowing money from the government |
| Passing "necessary and proper" laws | Regulating trade with foreign countries |
| Suspending the writ of habeas corpus | Except in cases of rebellion or invasion |
| Passing a bill of attainder | Creating a national banking system |
| Passing a capitation or other direct tax | Unless in proportion to the census |
| Granting letters of marque and reprisal | Coining money |
| Emitting bills of credit | Making anything but gold and silver coin a tender in payment of debts |
| Passing a law impairing the obligation of contracts | Granting any title of nobility |
| Laying imposts or duties on imports or exports without the consent of Congress | N/A |
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What You'll Learn
Creating a law ex post facto
Ex post facto laws are a significant aspect of constitutional law, and their creation is forbidden by the Constitution in the United States, Canada, the United Kingdom, Australia, and Brazil.
The United States
The United States Constitution expressly forbids the creation of ex post facto laws in two separate clauses, namely Article I, Section 9, and Article I, Section 10. These clauses prohibit the Federal Government and the individual states from enacting such laws. The Latin phrase "ex post facto" means "after the fact," and these laws impose criminal liability or increase criminal punishment retroactively. In other words, ex post facto laws criminalise actions after they have been committed, effectively making innocent acts criminal after the event.
The prohibition on ex post facto laws is rooted in the belief that legislative acts should give fair warning of their effects and allow individuals to understand the law's implications until it is explicitly changed. This restriction on governmental power prevents arbitrary and potentially vindictive legislation.
The Supreme Court has played a crucial role in interpreting and upholding the ban on ex post facto laws. In Beazell v. Ohio (1925), the Court held that retroactive criminal statutes that do not disadvantage criminal defendants are not ex post facto laws. Similarly, in Rogers v. Tennessee (2000), the Court found that an appellate court's decision to abolish the "Year and a Day Rule" for homicide convictions did not violate the ex post facto prohibition, as it was a routine exercise of common law decision-making.
Other Countries
The prohibition of ex post facto laws is not unique to the United States. Several other countries have constitutional or international law provisions that ban retrospective criminal laws:
- Canada: Section 11(g) of the Charter of Rights and Freedoms prohibits ex post facto criminal laws.
- United Kingdom: Article 7 of the European Convention on Human Rights, to which the UK is a signatory, prohibits retrospective criminal laws.
- Australia: The International Covenant on Civil and Political Rights, to which Australia is a party, expressly prohibits the implementation of retrospective criminal laws.
- Brazil: The Brazilian Constitution's Article 5, Section XXXVI, forbids laws with ex post facto effects that impact acquired rights, accomplished juridical acts, and res judicata.
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Borrowing money from the government
The Framers of the Constitution intentionally included the taxing and spending clause to empower the federal government to raise and spend money. This was a notable shift from the Articles of Confederation, which preceded the Constitution and did not grant the federal government the power to tax states. Instead, the federal government relied on state governments to tax their citizens and deposit the taxes into a national treasury.
The borrowing power of Congress is not without limits, however. When Congress borrows money on the credit of the United States, it creates a binding obligation to repay the debt as stipulated in the agreement. Congress cannot unilaterally change the terms of repayment once a loan agreement has been made. This means that Congress cannot pass a law to abrogate a clause in government bonds calling for a specific form of payment, such as payment in gold coin.
The Supreme Court has also weighed in on Congress's spending power, solidifying the idea that general welfare is a major factor in determining whether an action taken under the spending clause is constitutional. This means that Congress can set aside funds for states to improve the general welfare, such as creating public parks, and can place conditions on the receipt of federal grants and funds. For example, in South Dakota v. Dole (1987), Congress conditioned federal highway funds on states raising their drinking age to 21.
In summary, borrowing money from the government is not forbidden by the Constitution. The Constitution explicitly allows the federal government to borrow money, and Congress has been granted significant authority to do so through the "borrowing clause". This borrowing power is an important tool for Congress to raise funds and promote the general welfare of the United States.
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Passing necessary and proper laws
Passing "necessary and proper" laws is not forbidden by the US Constitution. In fact, the Necessary and Proper Clause, also known as the Sweeping Clause, Elastic Clause, Basket Clause, or Coefficient Clause, gives Congress the power to pass laws that are deemed necessary and proper for carrying out the powers vested in the government by the Constitution. This clause is found in Article I, Section 8 of the Constitution, which outlines the legislative powers of Congress.
The Necessary and Proper Clause is not a grant of power in itself, but rather a means to execute the powers specifically granted to Congress. It allows Congress to pass laws that may not directly solve collective action problems but are useful in carrying out its constitutional powers. For example, in McCulloch v. Maryland (1819), the Supreme Court interpreted the clause as giving Congress the implied power to establish a national bank, as a bank aids in Congress's power to tax and spend. Similarly, in Juilliard v. Greenman (1884), the Supreme Court considered whether Congress's powers to borrow money, coin money, lay and collect taxes, and regulate interstate and foreign commerce implied the power to make paper notes legal tender under the Necessary and Proper Clause.
The Necessary and Proper Clause also enables Congress to pass laws directing other government departments to prosecute or adjudicate particular claims. For instance, in 1924, Congress adopted a resolution directing the President to institute a suit for the cancellation of certain oil leases obtained through fraud and to prosecute civil and criminal actions as warranted.
While the Necessary and Proper Clause grants Congress significant authority, it is not without limitations. In Printz v. United States (1997), the Supreme Court held that a federal law requiring state executive officials to implement federal gun registration requirements was not "proper" as it did not respect the federal-state boundaries established by the Constitution. This case highlighted the importance of ensuring that laws passed under the Necessary and Proper Clause respect the structural boundaries set forth in the Constitution.
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Regulating trade with foreign countries
The US Constitution grants Congress the power to regulate trade with foreign countries, among states, and with Indian tribes. This is known as the Commerce Clause, which is part of Article 1, Section 8, Clause 3 of the Constitution.
The Commerce Clause gives Congress the authority to make rules governing the trade, transportation, or movement of people and goods from one state to another, to a foreign nation, or to an Indian tribe. It does not, however, include the power to regulate the economic activities that produce the goods to be traded, such as manufacturing or agriculture.
The interpretation of the Commerce Clause has been a subject of debate, with some arguing for a limited interpretation that excludes any prohibition on trade, while others advocate for a broader interpretation that includes the power to prohibit or restrict trade. The Supreme Court has generally taken a conservative approach to interpreting the clause, as seen in the United States v. Lopez case in 1995, where the Court held that Congress only has the power to regulate the channels of commerce, the instrumentalities of commerce, and actions that substantially affect interstate commerce.
The Commerce Clause has been used by Congress to justify exercising legislative power over state activities, particularly when those activities have a substantial economic effect on interstate commerce. This has led to ongoing controversies regarding the balance of power between the federal government and the states.
The power to regulate foreign commerce has been a significant aspect of the Commerce Clause, with Congress having absolute control over it. This was highlighted in the 1807-1808 "Jefferson's Embargo," which cut all trade with Europe. While this move was criticised as an abuse of power, it was upheld by Judge Davis of the United States District Court for Massachusetts, who recognised Congress's sovereign power over foreign commerce granted by the Constitution.
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Presidential veto
The presidential veto is a significant power granted to the President of the United States by Article I, Section 7 of the Constitution. This authority allows the President to prevent the passage of legislation by vetoing bills passed by Congress. The veto power is one of the most important tools at the President's disposal, and even the threat of a veto can lead to changes in legislation before it reaches the President's desk.
When a bill is passed by both houses of Congress, it must be presented to the President for approval or veto. The President has 10 days, excluding Sundays, to act on the legislation. If the President approves, they sign the bill into law. However, if the President does not approve, they may return the unsigned bill to the originating house of Congress within the 10-day period, along with a memorandum of disapproval or a "veto message" explaining their objections. This is known as a regular veto or a direct veto.
There are two types of vetoes: the regular veto, as described above, and the pocket veto. A pocket veto occurs when the President fails to sign a bill after Congress has adjourned and is unable to override the veto. The authority for the pocket veto comes from Article I, Section 7 of the Constitution, which states, "the Congress by their adjournment prevent its return, in which case, it shall not be law." The pocket veto is an absolute veto that cannot be overridden.
The presidential veto can be overridden by a two-thirds vote in both the House and the Senate. This process is known as a joint resolution. While rare, it is possible for a presidential veto to be sustained even with a two-thirds majority in the Senate if the necessary majority in the House is not achieved.
In addition to the President, state and territorial governors also possess veto power, as do some mayors and county executives. In some cases, governors have additional veto powers, such as line-item, amendatory, and reduction vetoes.
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