Whatever happened to Article 1, Section 8?

ASK THIS | April 03, 2006

A New York Times reporter wonders if Congress has forgotten its powers, and why the press isn't asking.

By David Cay Johnston
davidcayjohnston@aol.com

Are politicians acting in a way that is consistent with the Constitution -- in particular Article I, Section 8, which enumerates the powers of Congress? Here are some questions journalists should ask politicians – and themselves.

Q. How can we be at war when Congress has not declared war since Dec. 8, 1941? (See Clause 11 and remember that Korea was called a United Nations “police action” because war was not declared.) Is this clause moribund? And, if so, what does that mean for our republic and the liberties of the people?

Q. Why has Congress not invoked its power to issue “letters of reprisal” against the nongovernmental organization Al Qaeda? (Also see Clause 11.) What do you know about this long-ago established way of dealing with the acts of nongovernmental aggressors?

Q. What has Congress done to invoke its authority (see Clause 14) to regulate how prisoners of war, enemy combatants, the renditioned and others are treated? Why are these issues ignored while, by contrast, there is abundant debate about the meaning of “limited times” as it relates to copyright, or about what is, can or should be patentable? (See Clause 8).

Have you read Article I, Section 8? Here it is with numbered clauses:

Section 8 - Powers of Congress

The Congress shall have the power

1. 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:

2. To borrow money on the credit of the United States:

3. To regulate commerce with foreign nations, and among the several states,and with the Indian tribes:

4. To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States:

5. To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures:

6. To provide for the punishment of counterfeiting the securities and current coin of the United States:

7. To establish post-offices and post-roads:

8. 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:

9. To constitute tribunals inferior to the supreme court:

10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations:

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:

12. To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years:

13. To provide and maintain a navy:

14. To make rules for the government and regulation of the land and naval forces:

15. To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions:

16. 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:

17. 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, dock-yards, and other needful buildings: And,

18. 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.

David Cay Johnston, a Pulitzer prize winner, is a columnist for Tax Analysts and teaches the law of the ancient world at Syracuse University’s law and graduate business schools. The Fine Print, the third book in his series about the American economy, is scheduled to be published in 2011 by Penguin.

E-mail: johnstonstake@tax.org

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