This section encompasses essays on Article II of the Constitution dealing specifically with the Executive branch, the Presidency, its powers, and functions. A recommended first stop is the annotated essay on the Overview of Article II, Executive Branch .
This section encompasses essays on Article III of the Constitution dealing specifically with the Judicial branch, its powers, and functions. A recommended first stop is the annotated essay on Marbury v. Madison and Judicial Review .
This section encompasses essays on Article IV of the Constitution dealing specifically with the relationships between states. A recommended first stop is the annotated essay on the Purpose of Privileges and Immunities Clause.
This section encompasses essays on Article V of the Constitution dealing specifically with the creation of constitutional amendments. A recommended first stop is the annotated essay on Congressional Proposals of Amendments .
This section encompasses essays on Article VI of the Constitution dealing specifically with the establishment of the Constitution as the Supreme Law of the Land. A recommended first stop is the annotated essay on the Overview of the Supremacy Clause.
This section encompasses essays on Article VII of the Constitution dealing specifically with the ratification of the Constitution.
The first ten amendments to the Constitution.
This section encompasses essays on the First Amendment dealing specifically with fundamental freedoms. A recommended first stop is the annotated essay on State Action Doctrine and Free Speech .
This section encompasses essays on the Second Amendment dealing specifically with the right to bear arms. A recommended first stop is the annotated essay on Early Second Amendment Jurisprudence.
This section encompasses essays on the Third Amendment dealing specifically with the quartering of soldiers. A recommended first stop is the annotated essay on Government Intrusion .
This section encompasses essays on the Fourth Amendment dealing specifically with searches and seizures. A recommended first stop is the annotated essay on the Amendment’s Historical Background .
This section encompasses essays on the Fifth Amendment dealing specifically with the rights of persons. A recommended first stop is the annotated essay overviewing Due Process .
This section encompasses essays on the Sixth Amendment dealing specifically with rights in criminal prosecutions. A recommended first stop is the annotated essay on Prejudice and the Right to a Speedy Trial.
This section encompasses essays on the Seventh Amendment dealing specifically with civil trial rights. A recommended first stop is the annotated essay overviewing the Seventh Amendment.
This section encompasses essays on the Eighth Amendment dealing specifically with cruel and unusual punishment. A recommended first stop is the annotated essay on the standard of cruel and unusual punishment.
This section encompasses essays on the Ninth Amendment dealing specifically with unenumerated rights. A recommended first stop is the annotated essay on the Amendment’s modern doctrine.
This section encompasses essays on the Tenth Amendment dealing specifically with rights reserved to states and the people. A recommended first stop is the annotated essay on State Sovereignty .
The two earliest amendments ratified after the Bill of Rights.
This section encompasses essays on the Eleventh Amendment dealing specifically with suits against states. A recommended first stop is the annotated essay on the Amendment’s historical background.
This section encompasses essays on the Twelfth Amendment dealing specifically with the election of the President.
Also referred to as the Civil War Amendments, the 13th-15th Amendments were passed in the immediate aftermath of the Civil War to enshrine constitutional protections for newly-freed Black Americans.
This section encompasses essays on the Thirteenth Amendment dealing specifically with the abolition of slavery. A recommended first stop is the annotated essay on Defining Badges and Incidents of Slavery
This section encompasses essays on the Fourteenth Amendment dealing specifically with equal protection and other rights. A recommended first stop is the annotated essay overviewing Substantive Due Process .
This section encompasses essays on the Fifteenth Amendment dealing specifically with the right to vote. A recommended first stop is the annotated essay on the right to vote generally .
The constitutional amendments ratified in the early twentieth century prior to the Second World War.
This section encompasses essays on the Sixteenth Amendment dealing specifically with income tax. A recommended first stop is the annotated essay on the historical background of the Amendment.
This section encompasses essays on the Seventeenth Amendment dealing specifically with the popular election of senators. A recommended first stop is the annotated essay on the historical background of the Amendment.
This section encompasses essays on the Eighteenth Amendment dealing specifically with the prohibition of alcohol.
This section encompasses essays on the Nineteenth Amendment dealing specifically with women’s suffrage. A recommended first stop is the annotated essay overviewing the amendment .
This section encompasses essays on the Twentieth Amendment dealing specifically with the presidential terms and succession.
This section encompasses essays on the Twenty-First Amendment dealing specifically with the repeal of prohibition. A recommended first stop is the annotated essay on interstate commerce .
This section encompasses essays on the Twenty-Second Amendment dealing specifically with Presidential term limits.
Constitutional amendments passed in the twentieth century after the conclusion of the Second World War.
This section encompasses essays on the Twenty-Third Amendment dealing specifically with District of Columbia electors.
This section encompasses essays on the Twenty-Fourth Amendment dealing specifically with the abolition of poll tax.
This section encompasses essays on the Twenty-Fifth Amendment dealing specifically with Presidential vacancy.
This section encompasses essays on the Twenty-Sixth Amendment dealing specifically with the reduction of voting age.
This section encompasses essays on the Twenty-Sixth Amendment dealing specifically with the congressional compensation. A recommended first stop is the annotated essay overviewing the amendment .
Six amendments have been proposed by Congress, but have not been ratified by the States.
Personnel in each of the armed forces have followed current developments concerning President Bill Clinton and l'affaire Lewinski with the same lively interest as other Americans. Recently, the opinions of several military officers concerning these events spilled into public view. An active-duty Marine Major wrote in the Navy Times (19 October 1998) that "one should call an adulterous liar exactly what he is—a criminal." Others circulated an e-mail petition seeking to drum up support for impeaching and removing the President. In response, top leaders of the Marine Corps and the Air Force issued statements discouraging such efforts; in a memorandum, the Assistant Commandant of the Marine Corps said it is "unethical for individuals who wear the uniform of a Marine to engage in public dialogue on political and legal matters such as impeachment. Not only is it unethical, it could place the individual in violation of Article 88, Uniform Code of Military Justice." Inevitably, the press (Rowan Scarborough in the 23 October 1998 Washington Times ) soon voiced concern about unlawful command influence over the military justice process in the major's case. Because feelings are running so high, and also because these events reflect the tension between cherished constitutional values, it's important to go back to basics. The basics are—or should be—familiar territory. From the beginning , one of the core values of our political system has been subordination of the military to civilian control. The Constitution makes the President commander-in-chief, and the framers did not vest the power to remove a president in the military. After more than 200 years, we take this premise so much for granted that we may forget that it is one of the things that distinguishes our system of government from others. Indeed, the day after Major Sellers's column appeared, The New York Times described as "remarkable" that the civilian prime minister of Pakistan had removed the Army Chief of Staff, rather than vice versa, as has repeatedly happened in that country. The principle of civilian control does not restrict military officers from voting, contributing to political parties, or expressing personal views on vital issues of the day. It does, however, impose modest limits on political expression that do not apply to civilians under the First Amendment. Article 88 of the Uniform Code of Military Justice provides:
Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
The Manual for Courts-Martial explains:
It is immaterial whether the words are used against the official in an official or private capacity. If not personally contemptuous, adverse criticism of one of the officials or legislatures named in the article in the course of a political discussion, even though emphatically expressed, may not be charged as a violation of the article. Similarly, expressions of opinion made in a purely private conversation should not ordinarily be charged. Giving broad circulation to a written publication containing contemptuous words of the kind made punishable by this article, or the utterance of contemptuous words of this kind in the presence of military subordinates, aggravates the offense. The truth or falsity of the statements is immaterial.
Violations of Article 88 strike at the heart of our system of government in ways that transcend the present controversy. They not only erode civilian control of the military but also threaten the hierarchical system within the military. Compliance with Article 88 is a baseline measure of obedience and loyalty; officers who violate it set a poor example. It is a credit to the armed forces that officials rarely have resorted to Article 88. To be sure, from time to time issues have arisen under it and its predecessor provisions. There were numerous prosecutions during the Civil War, for example, President Lincoln having been deeply unpopular even among some Northerners. Since the Uniform Code of Military Justice took effect in 1951, there has been only one reported prosecution. In United States v. Howe (17 U.S.C.M.A. 165, 37 C.M.R. 429 [1967]), an Army Reserve second lieutenant was sentenced to be dismissed, to forfeit pay and allowances, and to be confined for a year for carrying a sign that said "LET'S HAVE MORE THAN A CHOICE BETWEEN PETTY FACISTS [sic] IN 1968" and "END JOHNSON'S FACIST [sic] AGRESSION [sic] IN VIET NAM." The United States Court of Military Appeals (now known as the United States Court of Appeals for the Armed Forces) had no difficulty upholding Article 88 against constitutional challenge. Article 88 requires line-drawing. Subtle differences of language, tone, setting, and audience may put a case over the line. A quarter century ago, Army lawyers at Fort Monroe had to decide whether an officer violated Article 88 by displaying a bumper sticker that simply said "Impeach Nixon." They decided such a bumper sticker was not punishable. Other word-choices might lead to a different outcome. Some argue that Article 88 fails to provide fair notice as to precisely what is illegal. But vagueness is no stranger to military law, which punishes misconduct defined as vaguely as "conduct unbecoming an officer and a gentleman" or "conduct to the prejudice of good order and discipline." Yet few in uniform would throw these familiar concepts overboard. There's ample room for the free expression of opinion in the military. Every branch has had its brilliant mavericks who have annoyed superiors no end even while contributing (in some cases significantly) to national defense. Proceedings itself, with its open forum that periodically causes heartburn for the management, is a continuing monument to free expression. But if Article 88 means the glass of free expression is not filled quite to the brim, this is so for very sound reasons which should not be forgotten . . . no matter how strongly one may feel on any particular issue of policy or politics. Mr. Fidell, who served on active duty with the U.S. Coast Guard, is an attorney in Washington, D.C. He has written extensively on military justice and is teaching a seminar on the subject this semester at the Yale Law School.
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Washington constitution, general—pre-1980, article i, declaration of rights, article ii, legislative department, article iii, the executive, article iv, the judiciary, article vi, elections & elective rights, article vii, revenue & taxation, article viii, state, county & municipal indebtedness, article ix, education, article xi, county, city & township organization, article xii, corporations other than municipal, article xiv, seat of government, article xvi, school & granted lands, article xvii, tide lands, article xxxi, equal rights amendment, prohibition (failed proposal in 1889), healthy environment (proposal).
Kristen L. Fraser, McCleary : Positive Rights, Separation of Powers, and Taxpayer Protections in Washington's State Constitution , 91 Wash. L. Rev. Online 91 (2016)
Michael Bindas, David K. DeWolf & Michael J. Reitz, The Washington Supreme Court and the State Constitution: A 2010 Assessment , 46 Gonz. L. Rev. 1 (2011).
Kristen L. Fraser, Grasping for the "Elephant in the Courtroom": Developments in Washington's Law of Lawmaking , 44 Gonz. L. Rev. 411 (2009).
Hugh D. Spitzer, New Life for the "Criteria Tests" in State Constitutional Jurisprudence: " Gunwall Is Dead–—Long Live Gunwall!," 37 Rutgers L. J. 1169 (2006).
Kristen L. Fraser, Method, Procedure, Means, and Manner: Washington's Law of Law-Making , 39 Gonz. L. Rev. 447 (2004-2004).
Cornell W. Clayton, Toward a Theory of the Washington Constitution , 37 Gonz. L. Rev. 41 (2001-2002).
Hugh D. Spitzer, Which Constitution? Eleven Years of Gunwall in Washington State , 21 Seattle U. L. Rev. 1187 (1998).
Kelly Kunsch, Washington State Constitutional Research: A Recipe for a Gunwall Analysis , Wash. St. B. News Oct. 1995, at 31.
Brian Snure, A Frequent Recurrence to Fundamental Principles: Individual Rights, Free Government, and the Washington State Constitution , 67 Wash. L. Rev. 669 (1992).
Hugh D. Spitzer, Washington: The Past and Present Populist State , in The Constitutionalism of American States 771 (George E. Connor and Christopher W. Hammons eds., 2008)
Charles K. Wiggins, Charles S. Voorhees and the Omnibus Admission Act , Wash. St. B. News, June 1989, at 25-30
Wilfred J. Airey, A History of the Constitution and Government of Washington Territory (1945) (unpublished Ph.D. thesis, University of Washington, Seattle)
Arthur S. Beardsley, Sources of the Washington Constitution , in State of Washington, 2011-2012 Legislative Manual at 385-422. Beardsley first prepared this study comparing provisions of the Washington State constitution with parallels in the federal constitution, other state constitutions, and the Hill and 1878 draft constitutions in 1939. It is reprinted every two years in the Legislative Manual. The link above is to the Legislative Manual on the legislature's website.
Herman J. Deutsch, A Prospectus for the Study of the Governments of the Pacific Northwest States in Their Regional Setting , 42 Pac. Nw. Q. 277 (1951), JSTOR ( UW restricted )
Drafting Washington's State Constitution , 48 Pac. Nw. Q. 22-24 (1957), JSTOR ( UW restricted ). Reprints two undated letters concerning the activities of the constitutional convention. The letters, signed "Flynn," originally appeared in the Walla Walla Statesman.
Ben Driftmier, Comparative Study of Constitutions for Provisions Not Found In Our Own , 3 Wash. Hist. Q. 259 (1912)
James L. Fitts, The Washington Constitutional Convention of 1889 (1951) (unpublished Master's thesis, University of Washington, Seattle)
John D. Hicks, The Constitutions of the Northwest States . Constitutional Convention Research Memorandum No. 6, Montana Constitutional Convention Comm'n. (1971-72). Reprinted from University of Nebraska University Studies, vol. XXIII, Nos. 1-2 (Jan.-April, 1923).
Claudius O. Johnson, George Turner, a Character from Plutarch , 18 Wash. L. Rev. 167-81 (1943) and 19 Wash. L. Rev. 18-30 (1944)
Leo Jones, Proposed Amendments to the State Constitution of Washington , 4 Wash. Hist. Q. 12 (1913)
Image: photo of Jonathan Ritchey Kinnear from University of Washington Libraries Grand Army of the Republic Civil War Photos collection. Record includes obituary ( Seattle Post-Intelligencer, April 1, 1912, at 2)
Lebbeus J. Knapp, The Origin of the Constitution of the State of Washington , 4 Wash. Hist. Q. 227 (1913). Also available here .
J. Orin Oliphant, Additional Notes on the Constitution of 1878 , 17 Wash. Hist. Q. 27 (1926)
Charles H. Sheldon, Judicial Review and the Supreme Court of Washington, 1890-1986 , Publius, J. Federalism, Wtr. 1987, at 69. JSTOR
Theodore L. Stiles, , 4 Wash. Hist. Q. 281 (1913). Stiles, a lawyer from Tacoma, was a delegate to the convention. He was one of the first five judges on the Supreme Court. For a biographical sketch of Mr. Stiles, see at 485. | |
Theodore L. Stiles |
Francis Newton Thorpe, Recent Constitution-Making in the United States: North Dakota, South Dakota, Montana, Washington , 2 Annals Am. Acad. of Pol. & Soc. Sci. 145-201 (1891), HeinOnline
Mark H. Adams and George R. Nock, Search, Seizure, and Section 7: Standing from Salvucci to Simpson , 6 Seattle U. L. Rev. 1 (1982)
Kathleen A. Baldi, Comment, The Denial of a State Constitutional Right to Bail in Juvenile Proceedings: The Need for Reassessment in Washington State , 19 S eattle U. L. R ev . 573 (1996)
Holly Broadbent, A Series of Missed Opportunities: The Washington Supreme Court's Lapse in Recognizing and Advancing Washington's Due Process Jurisprudence (Nov. 2022)
Bruce L. Brown, The Juvenile Death Penalty in Washington: A State Constitutional Analysis , 15 Seattle U. L. Rev . 361 (1992)
Daniel J. Clark, Dropping Anchor: Defining a Search in Compliance With Article I, Section 7 of the Washington State Constitution , 21 S eattle U. L. Rev . 1 (1997)
Frank J. Conklin & James M. Vaché, The Establishment Clause and the Free Exercise Clause of the Washington Constitution—A Proposal to the Supreme Court , 8 U. Puget Sound L. Rev. 411 (1985)
Ken Davis, Comment, Washington Constitution Article 1, Section 7: The Argument for Broader Protection against Employer Drug Testing , 16 U. Puget Sound L. Rev. 1335 (1993)
James M. Dolliver, The Washington Constitution and State Action: The View of the Framers , 22 Willamette L. Rev. 445 (1986), HeinOnline
James M. Dolliver, Condemnation, Credit and Corporations in Washington: 100 Years of Judicial Decisions – Have the Framers' Views Been Followed? , 12 U. Puget Sound L. Rev. 163 (1989) (examines Article I, § 16, the taking clause; Article VIII, § 7, the municipal credit clause; Article XII, §§ 1-22, the Corporations Article)
Cheryl L. Harner, Comment, The Repeal of Washington’s Infant Tolling Statute in Medical Malpractice Cases: State Constitutional Challenges , 22 Gonz. L. Rev. 133 (1986-87).
Katie Hosford, The Search for a Distinct Religious-Liberty Jurisprudence under the Washington State Constitution , 75 Wash. L. Rev. 643 (2000)
Charles W. Johnson & Scott P. Beetham, The Origin of Article I, Section 7 of the Washington State Constitution , 31 Seattle U. L. Rev. 431 (2008)
James E. Lobsenz, A Constitutional Right to an Appeal: Guarding Against Unacceptable Risks of Erroneous Conviction , 8 U. Puget Sound L. Rev. 375 (1985)
George R. Nock, Seizing Opportunity, Searching for Theory: Article I, Section 7 , 8 U. Puget Sound L. Rev. 331 (1985)
Symposium: The Role of a Bill of Rights in a Modern State Constitution , 45 Wash. L. Rev. 453 (1970)
Gregory C. Sisk, The Constitutional Validity of the Modification of Joint and Several Liability in the Washington Tort Reform Act of 1986 , 13 Seattle U. L. Rev. 433 (1990).
David M. Skover, The Washington Constitutional "State Action" Doctrine: A Fundamental Right to State Action , 8 U. Puget Sound L. Rev. 221 (1985)
Justice Debra Stephens, The Once and Future Promise of Access to Justice in Washington's Article I, Section 10 , 91 Wash. L. Rev. Online 41-56 (2016)
Jonathan Thompson, The Washington Constitution's Prohibition on Special Privileges and Immunities: Real Bite for "Equal Protection Review of Regulatory Legislation? , 69 Temp. L. Rev. 1247 (1996) (posted with permission of the author and HeinOnline)
Robert F. Utter, Freedom and Diversity in a Federal System: Perspectives on State Constitutions and the Washington Declaration of Rights , 7 U. Puget Sound L. Rev. 491 (1984) (reprinted in Developments in State Constitutional Law 239 (Bradley D. McGraw ed., 1985))
Robert F. Utter & Edward J. Larson, Church and State on the Frontier: The History of the Establishment Clauses in the Washington State Constitution , 15 Hastings Const. L.Q. 451 (1988)
Robert F. Utter, The Right to Speak, Write and Publish Freely: State Constitutional Protection against Private Abridgement , 8 U. Puget Sound L. Rev. 157 (1985)
Charles K. Wiggins, Francis Henry and the Declaration of Rights , Wash. St. B. News, May 1989, at 51-54
Charles K. Wiggins, Bryan P. Harnitiaux & Robert H. Whaley, Washington’s 1986 Tort Legislation and the State Constitution: Testing the Limits , 22 Gonz. L. Rev. 193 (1986-87) HeinOnline
Image: first lines of the Declaration of Rights, Secretary of State
Jeffrey T. Even, Direct Democracy in Washington: A Discourse on the Peoples' Powers of Initiative and Referendum , 32 Gonz. L. Rev. 247 (1996/1997), HeinOnline
Kristen L. Fraser, Method, Procedure, Means, and Manner: Washington's Law of Law-Making , 39 Gonz. L. Rev. 447 (2004)
Kristen, L. Fraser, " Grasping for the 'Elephant in the Courthouse': Developments in Washington's Law of Law-Making , 44 Gonz. L. Rev. 411 (2008-09) HeinOnline
Claudius O. Johnson, The Adoption of the Initiative and Referendum in Washington , 35 Pac. Nw. Q.291 (1944)
Claudius O. Johnson, The Initiative and Referendum in Washington , 36 Pac. Nw. Q. 29 (1945), JSTOR
Taylor N. Larson, Batting Two-for-Eleven: Tim Eyman's Initiatives and the Washington Supreme Court (2022)
Bryan L. Page, State of Emergency: Washington’s Use of Emergency Clauses and the People’s Right to Referendum , 44 Gonz. L. Rev. 219 (2009)
Image: Washington State Capitol (Legislative Building) from Secretary of State. This building was complete in 1928. Secretary of State site includes photos of earlier buildings where the legislature met.
Heidi A. Irvin, Note, Washington's Partial Veto Power: Judicial Construction of Article III, Section 12 , 10 Seattle U. L. Rev. 699 (1987)
Mark DeForrest, In the Groove or in a Rut? Resolving Conflicts Between the Divisions of the Washington State Court of Appeals at the Trial Court Level , 48 Gonz. L. Rev. 431 (2013) HeinOnline
Charles K. Wiggins, George Turner and the Judiciary Article , Part I, Wash. St. B. News, Sept. 1989, at 46-50 , and Part II, Wash. St. B. News, Oct. 1989, at 17-23
Rebecca Mead, Votes for Women! , Columbia: Mag. Nw. Hist., Wtr. 2010-11, at 5.
Charles K. Wiggins, John P. Hoyt and Women's Suffrage , Wash. St. B. News, Jan. 1989, at 17-20
Hugh D. Spitzer, A Washington State Income Tax--Again? , 16 U. Puget Sound L. Rev. 515 (1993)
Hugh D. Spitzer, Taxes vs. Fees: A Curious Confusion , 38 Gonz. L. Rev. 335 (2003)
David D. Martin, Comment, Washington State Constitutional Limitations on Gifting of Funds to Private Enterprise: A Need for Reform , 20 S eattle U. L. Rev . 199 (1996)
Hugh Spitzer, An Analytical View of Recent "Lending of Credit" Decisions in Washington State , 8 U. Puget Sound L. Rev. 195 (1985)
Laurie K. Beale, Charter Schools, Common Schools and the Washington Constitution , 72 Wash. L. Rev. 535 (1997)
Jessica R. Burns, Comment, Public School Funding and McCleary v. State of Washington— A Violation of the Separation of Powers Doctrine or a Legitimate Exercise of Judicial Autonomy? , 38 Seattle U. L. Rev. 1437 (2015)
Kristen L. Fraser, McCleary : Positive Rights, Separation of Powers, and Taxpayer Protections in Washington's State Constitution , 91 Wash. L. Rev. Online 91-140 (2016)
Laura Habein, Note, League of Women Voters v. State : The Rejection of Public and Private Hybridity within Washington State Public Schools , 31 Notre Dame J.L. Ethics & Pub. Pol'y 201 (2017),
Recent Case, Education Law - Washington Supreme Court Hold Legislature in Contempt for Failing the Make Adequate Progress toward Remedying Unconstitutional Education Funding Scheme - McCleary v. State, No. 84362-7 (Wash. Sept. 11, 2014), 128 Harv. L. Rev. 2048 (2015)
Recent Case, Education—Charter Schools—Washington Supreme Court Holds Charter School Act Violates State Constitution —League of Women Voters of Washington v. State , 129 Harv. L. Rev. 1811 (2016)
Adam Sherman & Hugh Spitzer, Essay, Washington State's Mandate: The Constitutional Obligation to Fund Post-Secondary Education , 89 Wash. L. Rev. Online 15 (2014)
Daniel C. Stallings, Comment, Washington State's Duty to Fund K-12 Schools: Where the Legislature Went Wrong and What It Should Do to Meet Its Constitutional Obligation , 85 Wash. L. Rev. 575 (2010)
See Selected Cases, below, for links to McCleary v. State and related documents.
Kent D. Richards, The Police Power and Washington Statehood: Insurrection, Agitation, and Riots , Mont.: Mag. W. Hist., Autumn 1987, at 10, JSTOR
Charles K. Wiggins, Austin Mires and the Capital Controversy , Wash. St. B. News, April 1989, at 24-27
Audrey Bell, Reshaping Washington's Public Lands Trust Doctrine (2022)
Daniel J. Chasan, A Trust for All the People: Rethinking the Management of Washington State Forests , 24 Seattle U. L. Rev. 1 (2000)
Charles K. Wiggins, The Battle for the Tidelands in the Constitutional Convention , Part I, Wash. St. B. News, March 1990, at 15-21; Part II, Wash. St. B. News, April 1990, at 15-19 ; and Part III, Wash. St. B. News, May 1990, at 47-52
Janine A. Parry, Putting Feminism to a Vote: The Washington State Women's Council, 1963-78 , 91 Pac. Nw. Q. 171 (2000), JSTOR (UW restricted)
Patricia L. Proebsting, Comment, Washington's Equal Rights Amendment: It Says What It Means and It Means What It Says , 8 U. Puget Sound L. Rev. 461 (1985)
Charles R. LeWarne, The Prohibition Proposition: A Hot Issue at the Constitutional Convention , Colum.: Mag. Nw. Hist, Summer 1989, at 26
Devra R. Cohen, Comment, Forever Evergreen: Amending the Washington State Constitution for a Healthy Environment , 90 Wash. L. Rev. 349 (2015)
Article I describes the design of the legislative branch of US Government -- the Congress. Important ideas include the separation of powers between branches of government (checks and balances), the election of Senators and Representatives, the process by which laws are made, and the powers that Congress has. Learn more...
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.
No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.
Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative; and until such enumeration shall be made, the state of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
When vacancies happen in the Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies.
The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.
The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.
Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and the third class at the expiration of the sixth year, so that one third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies .
No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.
The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.
The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.
The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.
The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.
Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.
Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.
Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal.
Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office.
All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.
Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.
Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;
To provide for the punishment of counterfeiting the securities and current coin of the United States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
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 privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
No bill of attainder or ex post facto Law shall be passed.
No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.
No tax or duty shall be laid on articles exported from any state.
No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another.
No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.
No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.
No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.
No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.
Article 1, Section 8, Clause 1 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States ;
Article 1, Section 8 enumerates the powers of Congress. Listing those powers indicates that the federal government is one of limited powers. Unlike a unitary sovereign which has all the general powers of government, the federal government has only limited sovereignty. At the same time, the federal government possesses the fullness of any power actually given to it. As Federalist #23 makes plain, on those matters for which the Constitution has delegated responsibility to the federal government, i.e., national defense, foreign relations, regulation of national and foreign commerce, and preserving the public peace against insurrection, the federal government’s “powers ought to exist without limitation.” All of which is to say that the powers of the federal government are limited in number, not that a listed power itself is limited beyond what is stated in the text of the Constitution.
As a result, it becomes essential to determine the meaning of the text for each enumerated power. Improper interpretation through either expansion or contraction does damage to the legitimate role of the federal government. Giving the federal government a power not enumerated moves it closer to possessing full sovereignty. Limiting a given power enfeebles, at least partially, the ability of the federal government to carry out its legitimate responsibilities. Experience has also taught that the federal government can be enfeebled in the exercise of its legitimate powers because it expends resources illegitimately exercising powers not enumerated in the Constitution. The built-in efficiency of the Constitution’s federal design is that it gave to the federal government, and left to the states, those responsibilities which each level of government was best able to perform.
The federal government has in large measure been able to exercise non-enumerated power through misconstruction of the first clause in Article 1, Section 8. This clause illustrates the interpretive challenge. To understand the challenge, it is necessary closely to inspect the text of this clause which reads as follows: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”
Notice that after the word “Power” the word “To” is capitalized. Then notice that “to” before “pay” is not capitalized. Every enumerated power thereafter begins with “To,” without repeating “The Congress shall have the Power.” In other words, each clause beginning with a capitalized “To” states a separate, enumerated power. Nevertheless, books on Constitutional Law routinely treat this first clause as having two distinct powers: to tax and to spend. Textually, however, the clause states only one power which is the power to tax (in order) to pay debts and provide for the common defense and general welfare of the United States.
The Supreme Court has, at times, had to struggle with whether congressional legislation which purports to impose a tax is in fact a tax when its purpose appears to be regulatory, e.g., a tax on gambling which was illegal at the time. If the clause in fact grants a single power which ties taxes to paying debts and providing for the common defense and general welfare, then the issue changes. Rather than an issue of whether the tax is really a tax, the question becomes whether – even if it is a tax — it meets the purpose language of the text. If so read, regulatory taxes that do not raise revenue to pay government expenses would become constitutionally questionable. In other words, a reading of only the taxing language of the text – I suggest – has resulted in giving Congress regulatory powers it does not possess under a reading of the language as a single power.
Incidentally, this kind of careful attention to the text is not “strict” or “narrow” construction. It is textualism of the kind that Justice Scalia writes and practices. As he says, he is not a “strict constructionist.” He attempts to give words in the Constitution their full meaning without either narrowing or broadening their legitimate sense.
Another mischaracterization of this clause refers to it as “the General Welfare Clause.” If Congress had a power simply to legislate for the “general welfare,” there would be no need to list any other powers. Under such a construction of the Constitution, the federal government would in no way be a limited one. Few, if any, students of the Constitution, however, would openly claim Congress has such unlimited power. Nevertheless, the spending language in the clause – viewed as distinct from the taxing language –can be distorted to achieve the same unlimited power.
As discussed in United States v. Butler (1936), one of the few Supreme Court cases to address the spending language of the clause, the clause has been a matter of dispute nearly since the beginning when Madison and Hamilton disagreed over its interpretation. (The legislation addressed in Butler also involved a tax collected to fund the spending.) Madison contended that the power to tax and spend for the general welfare had to be tied to one of the other enumerated powers. Hamilton, and later Justice Joseph Story, disagreed. They said the power was a separate power, limited only by the requirement that its exercise be for “the general welfare.” Although Butler adopted the Hamilton-Story position, it declared the particular legislation unconstitutional.
If the discussion above regarding the use of “To” and “to” means that the clause does not contain two powers, it should also establish that the clause contains a power separate from those which follow, as Hamilton and Story contended. If then Madison was incorrect, does this clause create a power so broad that it makes the enumeration of other powers superfluous? Both Justice Story and the Butler opinion recognize that there must be some limits on spending for the general welfare, but Butler did not elaborate.
The Supreme Court has since ignored Butler ’s notion that the clause contains any justiciable limits. A year after Butler , the Court upheld the parts of the Social Security Act dealing with unemployment compensation, Steward Machine Co. v. Davis (1937), and old-age benefits, Helvering v. Davis (1937). In Buckley v. Valeo (1976), the Court rejected a challenge to federal spending that financed presidential campaigns, saying “[i]t is for Congress to decide which expenditures will promote the general welfare.”
It may be that the term “general welfare” has acquired a meaning that, at least in Congress, extends well beyond the interpretation of Hamilton and Story. For Hamilton who promoted infrastructure spending on canals and bridges, the spending was not for local “pet projects” or so-called “earmarks.” Rather, such spending was to promote economic development generally; it benefitted more than a single state. Underlying the term “general welfare” seemed to be the idea that the federal government could spend on matters that generally benefitted the whole country. It was assumed not only that state governments would tax and spend on projects that benefitted their own state, but that they would not and should not tax and spend on projects to benefit other states. As with the original understanding of the Commerce Clause and other provisions in the Constitution, Congress was given the taxing and spending power for the general welfare in order to do for the states as a whole what none of them individually could do.
Congress’s idea of spending for the general welfare has often been used to “persuade” states to accept policy regulations which Congress lacks any power directly to impose. Congress achieves the regulatory end through conditioning receipt of the funds. Certain conditions attached to spending are not only reasonable, but required. Accordingly, the federal government ensures the proper use of funds by imposing accounting and reporting requirements and establishing other standards for spending the money. Congress, however, also manipulates conditions in what amounts to a form of “bait and switch;” it adds new conditions after states have become dependent on federal funding for such programs as highways and Medicaid. These new conditions are ones that a number of the states likely would not have accepted when the program began because they impose burdensome obligations or infringe on a state’s legislative powers. States, nevertheless, almost always accept the new conditions because they claim to have “no choice” — that is, except to drop the program or pay for it with state funds.
Rather than raise their own state taxes, with no diminution in federal taxes, states take the money because other states do and/or they get some return on the federal taxes paid by their citizens. Thus, the states at least acquiesce in – if not lobby for – high levels of federal spending with the accompanying federal taxes and/or deficits to support that spending. With almost all states participating in those spending programs directed to the states, the Congress can claim that those programs address the “general welfare.”
States have not been successful before the Supreme Court in claiming Congress’s imposition of new conditions is unconstitutional because they “coerce” states which have “no choice” other than to agree to the new conditions. In South Carolina v. Dole (1987), the Court rejected a constitutional challenge to Congress’s direction that the Transportation Department withhold 5% of the highway funds due to a state if the state did not prohibit persons under the age of 21 from purchasing or possessing alcoholic beverages. Congress certainly had no power under which it could directly establish a national drinking age. The Constitution left such police power issues with the states. Nevertheless, the Court determined, inter alia , that drunk driving was a “national concern.” Of course, it was not a concern that each state was incapable of addressing individually. Justice O’Connor argued in dissent that the condition was an unconstitutional infringement on state powers and noted that the Court’s discussion of federal spending in United States v. Butler (as distinct from other reasoning in the case) remains valid.
The last part of the clause (“all Duties, Imposts and Excises shall be uniform throughout the United States;”) guarantees that one region of the country having more voting power in Congress cannot use that power to disadvantage other states economically. This provision ties in with the prohibition on taxing exports (Art. 1, Sect. 9, cl. 5) and the power over commerce among the states and with foreign nations (Art. 1, Sect. 8, cl. 3). It represents one example of how the Constitution, as finally drafted, coordinates its different parts into a comprehensive and consistent plan of government.
Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University.
Hamilton erred in that he did not pay attention to what was deliberated at the Philadelphia Convention 1787. The following depicts how it was brought up for Congress to cut canals; but it was denied, even on a pretext that a state could possibly inhibit the general welfare by NOT cutting canals because the risk of giving Congress the power to cut canals would likely encroach into federal run central banks and merchantile monopolies:
Records of the Federal Convention Published Under Direction Of The United States Government From The Original Manuscripts. Reprinted 1895 Albert, Scott, Chicago, Page 725 Article 1, Section 8, Clause 7
[2:615; Madison, 14 Sept. 1787]
Doctor Franklin moved to add after the words “post roads” Article I Sect. 8. “a power to provide for cutting canals where deemed necessary”.
Mr Wilson seconded the motion.
Mr Sherman objected. The expense in such cases will fall on the United States, and the benefit accrue to the places where the canals may be cut.
Mr Wilson. Instead of being an expense to the U. S. they may be made a source of revenue.
Mr. Madison suggested an enlargement of the motion, into a power “to grant charters of incorporation where the interest of the United States might require, and the legislative provisions of individual States may be incompetent”. His primary object was however to secure an easy communication between the States, which the free intercourse now to be opened seemed to call for. The political obstacles being removed, a removal of the natural ones as far as possible ought to follow.
Mr. Randolph seconded the proposition.
Mr King thought the power unneccessary.
Mr Wilson. It is necessary to prevent a State from obstructing the general welfare.
Mr King — The States will be prejudiced and divided into parties by it. In Philadelphia and New York, it will be referred to the establishment of a bank, which has been a subject of contention in those cities. In other places it will be referred to mercantile monopolies.
Mr. Wilson mentioned the importance of facilitating by canals the communication with the Western Settlements. As to Banks he did not think with Mr. King that the power in that point of view would excite the prejudices and parties apprehended. As to mercantile monopolies they are already included in the power to regulate trade.
Col: Mason was for limiting the power to the single case of Canals. He was afraid of monopolies of every sort, which he did not think were by any means already implied by the Constitution as supposed by Mr. Wilson.
The motion being so modified as to admit a distinct question specifying & limited to the case of canals.
New Hampshire — Massachusetts — Connecticut — New Jersey– Delaware –Maryland — North Carolina — South Carolina — no Georgia — Pennsylvania — Virgina — aye [ Ayes–3; noes–8. ] The motion was not agreed to.
Hamilton erred in that he did not pay attention to what was deliberated at the Philadelphia Convention 1787. […]
I know of no reason to think he was unaware of it, nor do I see anything here that contravenes his interpretation – unless one assumes the Madisonian interpretation per Federalist #41 is binding, for which I’ve never seen a compelling argument; and when, by virtue of the availability for purchase of the Louisiana territory, push came to shove, neither, it seems, did Madison himself.
Well, Congress was denied the power to cut canals; but later justified doing so another way without an amendment, let alone establishing a central bank to boot. It is clear that the founder’s intents were to explicitly grant powers to the federal government; else what is not is reserved to the states. What is interesting to note is in after the constitution was completed for submission to the states, it was also thought worthy that the federal seat also take up promulgating education, Ah! But that required an amendment too! The delegates demurred doing so on account that one brought up the point that the federal seat already has the power to setup a national university in Washington, D.C., that all the states could emulate to. That seemed to be satisfactory to the delegates at the moment. Yet, several federal administrations have come and gone in recent years making all sorts of persuasive arguments that education affects prosperity in the lives of citizens who enter the marketplaces of commerce, therefore it is a Necessary and Proper Clause to regulate education by virtue of the Commerce Clause power of regulation. With such sophistry, anybody can accede any power to the federal government to no end. Then the amendment process is usurped and moot.
We also have the president of the Philadelphia Convention whose Farewell Address said this also: “If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” — George Washington, 1796
The Louisiana Purchase also gets mis-construed in constitutional arguments. It is known and taught that Jefferson was not given a grant of power by the Constitution to purchase territory; but as one who is granted the power to negotiate a treaty, Congress did foot the bill. Otherwise, without Congress pony up the money, the deal would have fallen apart. Just because such an event happened does not give license to presume such a power is granted the President. President Teddy Roo did a similar thing by issuing his “executive agreements” with pan American states. Yet, if Congress does not consent to it, then the agreement is not permissible. In addition, without a treaty, a president has little assurance that the next president will just reverse what was done. Nowadays it is known in modern International Law that agents of states make agreements to treaties; but government of states approve the agreements, else wise they are without force. Since many monarchies have been replaced by republics of a sort, it has been the phenomenon anyway that treaties and agreements are subject to state approval as the agents, consuls, and delegates of states are not the principals.
What is interesting to note is in after the constitution was completed for submission to the states, it was also thought worthy that the federal seat also take up promulgating education, Ah! But that required an amendment too!
That the Framers rejected such an amendment does not, IMO, demonstrate that such a power cannot reasonably be inferred from A1S8C1.
Yet, several federal administrations have come and gone in recent years making all sorts of persuasive arguments that education affects prosperity in the lives of citizens who enter the marketplaces of commerce, therefore it is a Necessary and Proper Clause to regulate education by virtue of the Commerce Clause power of regulation. With such sophistry, anybody can accede any power to the federal government to no end. Then the amendment process is usurped and moot.
Seems to me the Framers rather left the door open for the taking of such liberties by inclusion of “and provide for the common Defence and general Welfare of the United States”, which appears to be mere surplusage under the Madisonian interpretation.
The Louisiana Purchase also gets mis-construed in constitutional arguments. It is known and taught that Jefferson was not given a grant of power by the Constitution to purchase territory; but as one who is granted the power to negotiate a treaty, Congress did foot the bill.
If the LP was constitutionally problematic, it is hardly proper to hang it all on Jefferson, since Congress was nowhere granted explicit authority to purchase property from foreign entities. Thus, if the deal was unconstitutional, it seems there was no effective opposition to it; but if it was, the power to make it can only be inferred from A1S8C1.
On canals: That the Framers rejected such an amendment does not, IMO, demonstrate that such a power cannot reasonably be inferred from A1S8C1.
>Does not matter. The states never ratified even such an inferred power. That is bait and switch. If that were true then we would not have a constitution because the states were dead against the federal government adding on more powers under its own volition than was granted. As this is a federal system of government, and not a national one, the matter of federal powers rests on: the states giveth, and the states taketh away. But something that is unconstitutional, as much as such a phrase makes a government act as being like taboo, does not necessarily mean that certain federal actions are not a good idea.
On education: Seems to me the Framers rather left the door open for the taking of such liberties by inclusion of “and provide for the common Defence and general Welfare of the United States”, which appears to be mere surplusage under the Madisonian interpretation.
> The “General Welfare” clause was copied from the Aritcles of Confederation nearly word for word, and whatever state constitutions before that: “general” meaning “not particular” and “welfare” meaning “happiness or prosperity”. As much as many today who do not regard the intents of the founders, and make the constitution mean whatever private interpretation is to them, and take the General Welfare Clause to be a grant for running welfare programs, the clause apparently is an “open door” for such interpretation on account that many do. But at the time, it certainly is not an intentional “open door” otherwise it would render the federal form of government of scope moot and make a national one with full scope of plenary powers on any sophistry a regime wishes.
>True it is improper to hang on Jefferson’s head any folly of the LP. Since when is buying propety from foreign countries not a treaty power? The constitution subjects treaty power and the Law of Nations in the federal seat and forbids states from doing the same of their own accord. The Treaty of Paris, et.al., that ended the American Revolution ceded lands to the Mississippi and the Northwest Territory to the individual colonies as individual states, and under the Articles of Confederation collectively as the United States of America. As state constitutions did not forbid state actions in treaties with nations, they were free to annex land even if their state constitutions did not say so by virtue of being a free state. The federal is granted power to buy dockyards, and needful buildings, but not land from a foreign state?
Thank you Professor Baker. I was hoping you would have expanded a bit more on Congress and the Courts interpretation (and use) of “the original understanding of the Commerce Clause”. I’m quite aware of my limitations (didn’t graduate high school) and sincerely appreciate the access to more learned points of view, such as yours.
My interest in the commerce clause stems from its inclusion in the “findings” portion of the affordable health care act. I’ve read a number of related Supreme Court rulings and in particular found the “Gun Free School Zones Act” oral arguments fascinating as I was able to listen to them. In all of this I was genuinely surprised to learn just how much Federal legislation is theoretically based on the commerce clause. I find it more than a bit discomforting to note that the Court has (If I have this right) has never defined the “outer limits” of its jurisprudence regarding the commerce clause.
From this layman’s perspective without a defined “outer limit” the commerce clause hasn’t just become, but rather has been and remains, a blank, and lately increasingly more dangerous check (as in check book). I like to say the ‘commerce clause is our common cause’ for those of us concerned with constitutionally limited Federal power.
If you can bear the analogy, calling my congressman regarding every offensive piece of legislation they pump out is like patching hundreds of cracks in a dam and not plugging the hole at their source. The cracks jsut keep coming.
Again thank you for taking the time to help us understand our Constitution.
Well, we’re finally into the guts of it, aren’t we? Interpretaton by attorneys over the past 200 years has taken liberties on the lack of foresight of our finders in anticipating just how far the attorneys of the future would go to change the original intent of their vision of a workable Republic. This reminds me of Clinton’s reply “it depends on what the meaning of the word is is.” Clinton, without intending to do so, highlighted exactly what the problem has been over the past 200 years. Now we are trying to determine “what the meaning of the word ‘to’ is.” It all goes back to intent; it seems to me, as a non-attorney, that very few people in Congress have ever really cared about our founders’ intent. They’ve decided that their current interpretation is far more important than what a bunch of tired old men thought more than 200 years ago. Very interesting stuff. Thanks Professor Baker for shedding some light on what I think is the core issue of our Republic today.
Interesting how that general welfare clause has been stretched like a Gigantic rubber band, from one end of the Nation to the other. Such liberties have been taken…When exactly did we go from the limited powers of the Federal government and Congress, to virtually unlimited powers of the Feds and Congress to impose their will on the states..That is why I applaud governors of states who recently turned down money for high speed “bullett” trains, and those states that turned down stimulus money last year… We MUST return this Nation to its Constitutional roots before it is too late!!!
This would fix that problem fast. From my Congress 2.0 list of proposed amendments:
Article Three: State Revenue Amendment 1) No revenue shall be appropriated for any State budget except for taxes levied within the State. 2) All taxes collected within a State shall be deposited in a State held escrow, the outlays of which shall be paid to the Treasury of the United States the portion of which is collected as federal income, among other direct taxes in that State.
I read a tid-bit on tax and spend the other day that suits well here. One point of Congress spending on programs that it is not Constitutionally granted to spend on is that it takes tax dollars away from the granted powers such that the core powers of the federal government are weakened and lose effectiveness. We see that happening now as special interests vie for projects that, ironically, actually do not serve the general welfare.
Wow! Professor Baker I thank you for your fabulous essay!! It is truly fascinating to learn about this heavily debated clause both throughout history and still today. The differences in the “To” and “to” are revelatory, as are the differing interpretations of Madison, Hamilton and Supreme Court Justices. I am also intrigued with your perspective of Hamilton’s interpretation of the clause – that it was meant to do for the states what they could not do for themselves and that all other issues should be left within the states’ sovereignties. Today, however, we are still deciphering the true intent. What a mess. Interesting to note that the states have enabled the government by buying into the federal mandates because it was easier. States and our country’s citizens are paying for the consequences now. Standing up to the federal government is the task at hand- reclaiming state’s rights starts with “just saying no.” Like a drug, taking the money, though perhaps fraught with ambivalence at first, becomes a habit. Breaking the habit takes strength, perseverance and tenacity. The call for consistency lies with the voter – the genius of the people – who provides the ultimate voice in a Republic, hence holding the representatives and the President accountable. To make correct choices and to steer the ship in the right direction, we the people must be enlightened. “Liberty cannot be preserved without a general knowledge among the people.” John Adams said it best. I am so thrilled that we have this forum, special scholars, such as yourself, to educate us and all of the interested citizens who are blogging with us! God bless, Janine Turner
As this is a federal system of government, and not a national one, the matter of federal powers rests on: the states giveth, and the states taketh away.
This is a tautology. The point of contention here is what powers the states can reasonably be deemed to have given according to the plain language.
On education: […] As much as many today who do not regard the intents of the founders, and make the constitution mean whatever private interpretation is to them, and take the General Welfare Clause to be a grant for running welfare programs, the clause apparently is an “open door” for such interpretation on account that many do.
It’s not hard to make a case against most giveaway programs because they clearly don’t provide for the general welfare of anyone but petty government tyrants; but while the same could be said for federally controlled education, it’s not as easy to make the case against it in principle.
>True it is improper to hang on Jefferson’s head any folly of the LP. Since when is buying propety from foreign countries not a treaty power?
Since the Constitution, which separates the treaty power from the power to appropriate funds by virtue of requiring approval of the full Congress for the latter but not the former, became the supreme law of the land.
The federal is granted power to buy dockyards, and needful buildings, but not land from a foreign state?
I would say it is, but not solely on the basis of the treaty power. Absent the the phrase “and provide for the common Defence and general Welfare of the United States”, that power would not exist.
yguy says: “I would say it is, but not solely on the basis of the treaty power. Absent the the phrase “and provide for the common Defence and general Welfare of the United States”, that power would not exist.”
Ah, the spending clause…the power of the purse! But that is just it. It is the spending clause, and the object of that spending is the common defense and general welfare. It is not a grant to spend on anything and everything of common defense and general welfare in any exclusive sense, and certainly is not a grant of unlimited spending under the color of common defense and general welfare. This is because it is a federal government and not a national one. Act1Sec8 therefore is a list of enumerated powers. But under a national government, then that list of enumerated powers would be mere suggestions. The spending clause is there because it would otherwise need be declared elsewhere on, say, the President, or otherwise. The spending is as the mortar of the federal government that gives the enumerated powers…the bricks…effect.
It is not a grant to spend on anything and everything of common defense and general welfare in any exclusive sense, and certainly is not a grant of unlimited spending under the color of common defense and general welfare. This is because it is a federal government [].
How exactly does the former follow from the latter?
The spending clause is there because …
We all know why it’s there. We’re talking about a specific phrase within that clause, which appears on its face to imply spending powers beyond those enumerated in the remainder of A1S8.
It is not a point that can be compromised. You cannot make a national power out of one clause that is only the object of the actual power to spend, and have a federal government. You cannot have both. It is either one or the other. The clause is not the power. You are homing in on a clause and making a power out of it. Stop getting hung on a modifier clause in the scope of a federal form of government. It is only a descriptor on what the object of the spending power is.
Ralph, I have no idea what value this “national versus federal” distinction has in this context. In particular, I fail to see how funding public education is a national power whereas purchasing property from foreign entities is not, when both rely on A1S8 for their justification.
Stop getting hung on a modifier clause in the scope of a federal form of government. It is only a descriptor on what the object of the spending power is.
That is trivializing it to the point of absurdity when on its face it presents a veritable Pandora’s Box full of possibilities, for good or ill.
Federal: states grant powers to the central government. National: central government grants powers to the states, which cease to then be states but are rather provinces.
The US Constitution is written first as a Positive Law document, telling what the central government can do, rather than a Negative Law document, telling what the central government cannot do. The Bill of Rights then was added on as a negative on the central government; but only the central government accepting for the 2nd Amendment, which was resolutely followed by the Militia Act of 1792 requiring all abled bodied men to own a musket and have a couple dozen or so rounds of ammunition.
The federal form of government is what frames the context the spending clause confers to “provide for the common defense and the general welfare of the United States.” It is a spending clause with the object of paying for the following enumerated A1S8 powers the states gave the federal government. It is only a descriptor of the nature of the spending power, and is not a grant of power to spend on anything. If it be Necessary and Proper to the execution of the enumerated powers, then Congress may spend on those things too. To interpret otherwise would then only turn the A1S8 to be a list of suggested powers where the spending power could be conflated to include any national object. The end run then is Legislation by Appropriation, where the spending becomes defacto law and policy. At that point, the federal government ceases to be a federal government and has become a defacto national government that is able to not only presume more powers; but by the supremacy of the Law of the Land, able to trump just laws and plenary powers of the States.
In debate on subsidizing hurting New England fisheries, “If Congress can employ money indefinitely to the “general welfare,” and are the sole and supreme judges of the “general welfare,” then they may take the care of religion into their own hands; they may appoint teachers in every state, county, and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the United States; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, everything from the highest object of state legislation down to the most minute object of police would be thrown under the power of Congress, for every object I have mentioned would admit of the application of money, and might be called, if Congress pleased, provisions for the “general welfare.” Jonathan Elliott, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington: 1936), Vol. 4, pp. 429, James Madison on “The Cod Fishery Bill,” February 7, 1792.
Two specific aspects of the Constitution were intended to prohibit such federal encroachments: (1) the Enumerated Powers Doctrine, and (2) the Bill of Rights
The federal form of government is what frames the context the spending clause confers to “provide for the common defense and the general welfare of the United States.” It is a spending clause with the object of paying for the following enumerated A1S8 powers the states gave the federal government.
Then the phrase I quoted is extraneous, since yours would be a perfectly reasonable interpretation without it – not to mention that the Louisiana Purchase would have been unconstitutional.
In debate on subsidizing hurting New England fisheries, “If Congress can employ money indefinitely to the “general welfare,” and are the sole and supreme judges of the “general welfare,” then they may take the care of religion into their own hands ;
That is prohibited by 1A. As for the rest of it, I don’t know what your point is. By the plain meaning of A1S8, the premises are correct; and if Congress deems either public education or the purchase of property from foreign entities as improvements to the general welfare of the US, it has authority to tax and spend accordingly, whether either of those powers are specifically enumerated in that section or not. If we don’t like that, the remedies are to elect a new Congress or amend the Constitution.
yguy said: Then the phrase I quoted is extraneous, since yours would be a perfectly reasonable interpretation without it – not to mention that the Louisiana Purchase would have been unconstitutional.
Once again, LP falls under the Treaty Power as Necessary and Proper as purchasing land from any foreign country and so can be constitutional.
…“If Congress can employ money indefinitely to the “general welfare,” and are the sole and supreme judges of the “general welfare,” then they may take the care of religion into their own hands;
yguy said: That is prohibited by 1A…
Once again, the Constitution is a positive law document; and the Bill of Rights a negative. The hazard of adding a set of negative amendments, that is to say, what the federal government cannot do, is that it opens interpretation to what the government can or cannot do. The Bill of Rights actually staved off another Constitutional Convention in order to keep the first one. So just because amendments came about after, does not imply other powers under the spending clause to anything Congress so deems fit. The states that ratified the Constitution absolutely were dead against such an interpretation of the spending clause, which is what that New England fishery debate is about…not allowing the “general welfare” to take on any other meaning than the powers enumerated in the Constitution. Any sitting Congress that goes and takes on a take over of education would serve well to pay attention that such a motion was denied by the delegates who wrote the Constitution. And as it is quite understandable that newly elected Congressman cannot know everything concerning the law, we have judges who serve for life whose moral duty is to uphold what the states and prior legislatures had ratified or passed above the ignorance of new comers.
Once again, this is a federal form of govenment, and not a national one. That is the basis of the governing document of the Constitution, and it is an extremely fundamental one that few who hold power seem to comprehend. The “General Welfare” Clause indeed can seem to be extraneous, and indeed could be reduced to just an abbreviated spending power with no descriptor or modifier. But then people will still point to it and extrapolate that they are not explicitly denied to not spend on anything from the most particular of affairs like bailing out a fishery or to the relief of Haiti refugees (another motion made early on the Congress floor), to gargantun enterprises like taking over and running education, health care, manufactures, labor, after longevity insurance (a.k.a. Social Security Insurance mistakenly taken to be a retirement pension…it is an insurance against the eventuality that you may live longer than expected), et.al., to no end. So the General Welfare Clause is a descriptor of the nature of the spending that it must not be particular to within a state; but among states, not license of any and all general powers to be had.
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Sujet à traiter : « art. 88-1 C : "La République participe à l'Union européenne constituée d'Etats qui ont choisi librement d'exercer en commun certaines de leurs compétences en vertu du traité sur l'Union européenne et du traité sur le fonctionnement de l'Union européenne, tels qu'ils résultent du traité signé à Lisbonne le 13 décembre 2007."
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Mais c'est l'interprétation audacieuse et constructive du Conseil constitutionnel qui, en valorisant l'article 88-1 de la Constitution, a permis de dépasser l'habituel conflit potentiel entre norme constitutionnelle et droit de l'UE. En faisant de la primauté du droit de l'Union européenne une règle constitutionnelle par un ...
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Il vise l'uniformité et la conformité. Cet article 88-1 sert donc de base aux jurisprudences antérieures qui vont organiser tous les rapports législatifs et de compétences entre la République française et l'Union européenne. L'article 88-1 est le pivot et le coeur de l'articulation entre le droit européen et le droit national.
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