The Constitution: Powers Denied To Congress

The US Constitution grants Congress the power to make laws and outlines the legislative branch's responsibilities and limitations. Article I of the Constitution establishes the separation of powers between the branches of government, the election of Senators and Representatives, the law-making process, and the powers vested in Congress. While the Constitution grants Congress extensive powers, it also includes certain prohibitions, such as the prohibition on prohibiting the migration or importation of persons by any state before 1808. Additionally, the Tenth Amendment reserves powers not delegated to the federal government or prohibited to the states for the states or the people.

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Congress cannot prohibit the importation of people before 1808

Article 1, Section 9, Clause 1 of the US Constitution, also known as the Slave Trade Clause, prohibited the federal government from limiting the importation of "persons" until 1808. This clause was a compromise between Southern states, where slavery was pivotal to the economy, and states that had already abolished slavery or were contemplating doing so. It was also a compromise on the timing of the restriction, with some states pushing for 1800 as the cut-off date.

The Clause prevented Congress from prohibiting the importation of people, specifically enslaved African persons, until 20 years after the Constitution took effect. This meant that individual states could decide whether to allow the importation of slaves during this period. The Clause also allowed for a tax or duty to be imposed on the importation of people, with a limit of $10 per person.

In 1807, Congress passed the Act Prohibiting Importation of Slaves, which took effect on January 1, 1808, the earliest date permitted by the Constitution. This legislation was promoted by President Thomas Jefferson, who had called for its enactment in his 1806 State of the Union Address. The Act made it a federal crime to import slaves from abroad, even on foreign ships. However, it did not end the domestic sale of slaves or the interstate slave trade, and slavery itself persisted in the United States.

Despite the Act, the illegal importation of slaves continued after 1808, with historians estimating that up to 50,000 slaves were brought into the country illegally. Enforcement of the Act was challenging, and it drove the slave trade underground. While the Slave Trade Clause and the Act Prohibiting Importation of Slaves represented steps towards abolishing the international slave trade, the complex dynamics of slavery and state interests in the early United States influenced the timing and impact of these measures.

Congress cannot suspend the writ of habeas corpus

The Suspension Clause of the US Constitution protects the right to habeas corpus, which is the right to challenge an arrest or imprisonment. Habeas corpus is derived from Latin and means "you have the body", and it is a legal principle that requires the government to provide a valid reason for detaining or imprisoning an individual.

The Suspension Clause states that the privilege of the writ of habeas corpus cannot be suspended unless in extraordinary circumstances: when a rebellion or invasion occurs and public safety is at risk. This clause assumes that some access to habeas relief will exist when the privilege of the writ has not been suspended. However, it does not expressly guarantee that access. The interpretation of this clause has been disputed, with some arguing that it does not simply restrict Congress's ability to suspend habeas corpus but also guarantees prisoners a forum to challenge their detention.

The writ of habeas corpus has been suspended four times since the Constitution was ratified: throughout the country during the Civil War, in several counties in South Carolina during Reconstruction, in two provinces of the Philippines during an insurrection in 1905, and in Hawaii after the bombing of Pearl Harbor. On each occasion, Congress authorised the suspension of habeas corpus.

The Suspension Clause is an important protection of individual liberty, ensuring that the government cannot arbitrarily detain or imprison individuals without due process.

Congress cannot pass a bill of attainder

The Constitution of the United States prohibits Congress from issuing "bills of attainder". The U.S. Constitution only permits the judiciary to determine whether someone is guilty or innocent. A bill of attainder is a law that legislatively determines guilt and inflicts punishment upon an identifiable individual or group without provision of the protections of a judicial trial. In other words, it is a law that imposes criminal punishment on specific individuals for actions they previously took, and it does so without the benefit of a trial.

The Bill of Attainder Clause is one of several constitutional prohibitions against retroactive government action. The Framers included the prohibition against ex post facto laws in the Constitution to protect people from legislative determinations of guilt and reinforce the Constitution's separation of powers. The ex post facto clause, the contract clause, and the due process clause also prohibit certain types of retroactive government action.

The Bill of Attainder Clause has been interpreted by the Supreme Court to ban not only legislation imposing a death sentence but also legislation that imposes other forms of punishment on specific persons without a trial. For example, in the 1965 case United States v. Brown, the Court held that a federal statute making it a crime for a member of the Communist Party to serve as an officer of a labor union was a bill of attainder. The Court concluded that Congress had exceeded its authority by enacting the statute because, rather than creating generally applicable rules for courts to apply, the statute specifically designated which persons could not hold union office.

The Supreme Court has also applied the Bill of Attainder Clause to prevent legislatures from circumventing the courts and punishing people without due process of law. In the Reconstruction-era cases Ex parte Garland and Cummings v. Missouri, the challenged provisions required persons engaged in certain professions to swear an oath that they had never been disloyal to the United States. The Court ruled that Congress had violated the Bill of Attainder Clause by legislating determinations of guilt and inflicting punishment without a trial.

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Congress cannot pass ex post facto laws

The United States Constitution prohibits Congress from passing ex post facto laws. This means that Congress cannot create retroactive laws that criminalise actions that were innocent when they were carried out. The Ex Post Facto Clause is one of several constitutional prohibitions against retroactive government action.

The US Constitution only permits the judiciary to determine whether someone is guilty or innocent. The prohibition against ex post facto laws reinforces the idea that the government cannot punish someone retroactively for an action that was lawful at the time it was committed. In combination with the ban on bills of attainder, the prohibition against ex post facto laws protects citizens against potential abuses of government power.

The Ex Post Facto Clause is included twice in the Constitution. In Article I, Section 9, the prohibition applies to the federal government. The subsequent section of the charter, Article I, Section 10, likewise targets state enactments. These provisions are a proto-bill of rights in the body of the original document, which makes them unusual in that opponents of the Constitution often cited the lack of a bill of rights as the reason for their stance.

Ex post facto laws are closely related to bills of attainder, which are legislative actions that determine guilt or impose criminal punishment on specific persons or groups without a judicial trial. In some cases, a single legislative action may violate both the ex post facto and bill of attainder prohibitions. An example of an ex post facto law is a law that renders an act punishable in a manner in which it was not punishable when it was committed.

Congress cannot establish a religion

The First Amendment of the U.S. Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". This is known as the Establishment Clause, which prohibits the government from establishing an official religion or favouring one religion over another.

The precise definition of "establishment of religion" is unclear and has been the subject of much debate and court interpretation. Historically, it meant prohibiting state-sponsored churches, such as the Church of England. Today, the Supreme Court governs what constitutes an "establishment of religion" under the three-part test set forth in Lemon v. Kurtzman (1971). According to the "Lemon Test", the government can assist religion only if:

• The primary purpose of the assistance is secular;
• The assistance must neither promote nor inhibit religion;
• There is no excessive entanglement between church and state.

The Establishment Clause is often in conflict with the Free Exercise Clause, which protects citizens' right to practice their religion as they please, as long as it does not conflict with "public morals" or a "compelling" government interest. These two clauses work together to ensure religious freedom and prevent religious discrimination by the government.

Congress has a wide range of powers vested in it by the Constitution, including the power to lay and collect taxes, duties, imposts, and excises; to regulate commerce with foreign nations and among the states; to establish uniform rules of naturalization and bankruptcy laws; to promote scientific progress and useful arts by securing exclusive rights to authors and inventors; to define and punish piracies, felonies committed on the high seas, and offences against the law of nations; to declare war and make rules concerning captures on land and water; to organize, arm, and discipline the militia; and to make all laws necessary and proper for carrying into execution the powers vested in the government. However, establishing an official religion or prohibiting its free exercise is expressly prohibited to Congress by the First Amendment.

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