Article 1 sect 9 and 10 Hello and welcome back to The Civic Flame, a podcast where we take a deep dive into the US Constitution and how it doesÑand doesnÕtÑshape whatÕs going on in politics today! You may have noticed that we took a hiatus last week because, hey, if itÕs good enough for Congress, then itÕs good enough for me. But, unlike the House of Representatives that has not been working during what is now officially the longest government shutdown in US history, I took the SenateÕs approach and still kept plugging away at stuff, We changed our podcast hosting to AudioBloom, so bear with me as I check out our new features and see whatÕs up. As we continue on with our podcast episodes, weÕre looking today at the end (finally!) of Article 1 and the powers of the Legislative Branch. If youÕre only going to listen to one episode on the Legislative Branch, check out our last one on Enumerated powers spelling out exactly what Congress can do. Today, weÕre looking at the limits that the Constitution, theoretically puts on them, and what that means for big issues like interstate commerce, making new states, and even (gasp!) secession! Grab a seat around the fire and letÕs go! (intro) Last week we covered the fundamental section of CongressÕ powers, the Enumerated Powers (or article 1 section 8) where Congress gets some great powers like making a post office, declaring war, and levying taxes. It also had the very important Ònecessary and proper clauseÓ which gives Congress what are called ÒimpliedÓ or unstated powers. These relate to some extent to the enumerated power because Congress has all power to carry into law what it needs to ensure ÒtheseÓ (that is the enumerated power) powers. As if it werenÕt difficult enough to figure out what exactly that means and where exactly the lines are drawn between necessary and proper implied powers and ridiculously broad federal overreach, we also have article 1 section 9 which limits what Congress can do. Article 1 section 9 is powers denied to Congress and actually starts with an obsolete section that says Congress canÕt limit the international slave trade until 1808 (at which point, most enslaved people were born here and human trafficked away from their parents, so there was no need to regulate the international trade. A clever way the enslavers who were a fundamental part of drafting the Constitution managed to simultaneously outline a document meant to provide freedom while also enshrining the absolute un-freedom of a whole lot of people. Not for nothing, but the Massachusetts Constitution (which is, I believe, the oldest operating written Constitution in the world and does pre-date the US Constitution, wrote that all men were free and was used by the Massachusetts supreme court to legally abolish slavery in the Commonwealth under those laws). Moving from the obsolete section we start getting into some stuff. ÒThe 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.Ó This is a pretty important bit as the writ of habeas corpus is basically your ability to get due process. Habeas corpus roughly translates to body of lawsÓ (or Òyou have the bodyÓ as the more literal translation, but the body in question is the body of laws). Basically, if weÕre not studying Latin, habeas corpus is your right to sue, to demand due process, and to see that you are being lawfully detained. Note here that there are some scary exceptions to this: rebellion and public safety can be pretty broad. The next section is similar in that is says, ÒNo Bill of Attainder or ex post facto Law shall be passed.Ó A Bill of Attainder is a bill that says a certain person or group can be detained or charged without trial. And an ex post facto law means that youÕre making something illegal AFTER someone did it and trying to punish them for that. So, like saying that red cars are illegal tomorrow, but that anyone who bought one in the last year is also in trouble. Remember that so many of these bills came from things the colonists experienced or were credibly concerned they would experience under the English monarchy. So, suspending the writ of habeas corpus or saying that thereÕs a war so you donÕt have rights was pretty classic. If you look at these things together you can see how they might work. In places that have been under authoritarian regimes, like the GDR in East Germany when it was totally controlled by the Soviet Union, it wasnÕt uncommon for laws to be completely suspended due to public safety, or individual groups to be targeted without trial (bill of attainder stuff), or ex post facto laws like saying membership in a certain group was illegal now and always. Meaning that even if youÕd been a member in the group a few years ago and left, that you could still be in trouble today. This has recently been a problem with social media because people who live in authoritarian regimes but also post things online have started to realize that very old posts that were legal at the time can come back and bite them today when those ideas are now dangerous, subversive, or illegal. For more on this, check out our 3-part Campfire episode on how social media might be destroying the world. It's also likely why places like Germany were very reluctant to accept social media and Germany was one of the countries that had the most limitations on citizen data collection. German citizens learned from living under fascism that any organization that takes too much of your private information can be a problem. So, in the digital age, all of this archaic sounding stuff like ex post facto law and bill of attainder are actually quite relevant. ThereÕs some more stuff in there on taxes and the limitations on using taxes to target any states. One part was changed by the 16th Amendment, which established the income tax. This also includes general points about how Congress canÕt play favorites among the states with things like: ÒNo 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.Ó A lot of this section, along with section 8, was about establishing interstate commerce. Part of this was to create an economic union to help drive a social and political one. If we were interconnected in economic necessity, then maybe weÕd be better friends? That hasnÕt seemed to work and kind of reminds of the ridiculous Ô90s neoliberal Òlexus and the olive treeÓ Thomas Friedman type commentary about how economics would end world wars because Òno two nations with a McDonaldÕs had ever gone to war.Ó Reductivist and overly simplified? Yes. But is useless and harmful rhetoric that just keeps economists thinking theyÕre anything other than astrologers in suits? Also, yes. Economists are hilarious, though not usually on purpose. Speaking of money, the next paragraph says, ÒNo Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.Ó This is basically a way of saying, Òshow me the receipts,Ó literally. You canÕt be spending the money without going through the process, and when you spend the money, we want to know where it goes. Organizations within the federal government like the Congressional Budget Office and the Government Accountability Office are similar to internal affairs groups that are meant to keep track of the money and policy. Unfortunately, even before the government shutdown, they were some of the first groups to be cut by Elon MuskÕs illegal DOGE organization. Which is ironic because if you wanted to save money, these would be the organizations that already had years of data showing you how. But Musk was interested in two things: underfunding agencies that were investigating and fining him (which he did) and then getting all of our data for different AI and other models (which he also did when he accessed everyoneÕs social security information). Lastly with section 9 we have ÒNo 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.Ó We talked a bit about emoluments before. These are basically extra money or benefits that you get. So, your regular paycheck or money back for on the job travel expenses, not emoluments and are perfectly legal. Anything extra like money or insider information on the tax policies or titles of nobility are illegal. It's important to see that the founders knew bad actors would be in government and they gave us laws to get rid of them. Unfortunately, in order to maintain the smaller government structure and keep agencies from stealing each otherÕs power, they did not make these laws self-enforcing. Someone has to being charges, someone has to prosecute, and basically someone has to hold someone else accountable. But when you have a lot of people who donÕt want to risk being held accountable, then they donÕt want to hold anyone else accountable either. So, that basically explains how we got where we are with the government and the lack of responsibility that (if my students are any indication) filters down to all of us with their modeling of bad behavior. Continuing with our Thou Shalt Nots, Article 1, Section 10 talks about what the states canÕt do. ÒNo State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing 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.Ó A lot of this is basically re-stating all of the powers above and saying thereÕs a lot of stuff that Congress canÕt do (titles of nobility, ex post facto laws, etc.) that states ALSO canÕt do. But that thereÕs some stuff the federal government can do (coin money, decide legal tender) that states STILL canÕt do. One of the interesting ones that states canÕt do is enter into treaties, alliances, or confederations. This was basically the reasoning behind saying the South couldnÕt secede during the Civil War when they committed treason by firing on Fort Sumpter in South Carolina. The next section talks a lot more about taxes and tariffs, etc. Basically, it says that states canÕt tax the federal government (something that you hear reiterated in the case McCullouch v MD in 1819). The Article ends with ÒNo 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.Ó Again, reiterating the fact that weÕre not allowed to keep our own armies (though we can have a national guard) and we canÕt make alliances with other states or national governments for help unless weÕre actually being invaded. So, if Ireland decides to invade Boston, Massachusetts can enter into an alliance with Canada to stop them if the US government isnÕt responding fast enough, but in general, we canÕt call up Ireland or Canada and ask them to enter into an alliance with us during peace time. This is a question now as many secessionist movements are taking place in the US. There has always been a Tex-it kind of movement, but now weÕve got Cal-exit, the Republic of New England, parts of Cascadia, and Laurentia movements. TheyÕre small, but magnitudes bigger than ever before. And it does being up questions of how much states can coordinate with each other. When the HHS started deleting data (that your tax dollars have already paid for, by the way, so that is literally your data), on flu shot effectiveness or maternal health, different regions have picked up the slack by creating regional health organizations. ItÕs unclear how much these groups can operate within constitutional bounds. As long as it is specific to something (like transit, or health) they should be fine. But itÕs unclear when the lines get drawn. It also means that groups like Cal-Exit arenÕt supposed to ask Mexico for help if they secede or Republic of New England canÕt ask Canada to be on standby. It looks like the founder knew some of us would want out eventually, but they didnÕt do a great job of spelling out when and whether any state could secede from the union. Not that thatÕs a question thatÕll ever come up again. (transition) SO thatÕs it for Article 1, can you believe it? And it only took us three months. So, if you ever think reading the Constitution is hardÉ.well, it is. But now youÕve got some of the skill under your belt. Next week, weÕll get into article 2 and the presidency. In the meantime, share this podcast wildly so we can get some traction. Because once weÕre done with the Constitution, weÕre going to need some feedback on where to go next. Cases? Amendments? Greatest Constitutional crisis? Think about it, and keep the civic flame Buring bring. Until next time, take care out there! (outro) The civic flame is a Dr Fun Sponge Media production with writer Amber Vayo and sound producer Matthew Munyon. Thanks for listening!