| ARTICLE I | 63 |
| LEGISLATIVE DEPARTMENT | 63 |
| Section 1. | Legislative Powers | 63 |
| SEPARATION OF
POWERS AND CHECKS AND BALANCES | 63 |
| The Theory
Elaborated and Implemented | 63 |
| Judicial
Enforcement | 65 |
| BICAMERALISM | 70 |
| ENUMERATED,
IMPLIED, RESULTING, AND INHERENT POWERS | 71 |
| DELEGATION OF
LEGISLATIVE POWER | 73 |
| Origin of the
Doctrine of Nondelegability | 73 |
| Delegation
Which Is Permissible | 75 |
| Filling Up the
Details | 76 |
| Legislative
Powers | 76 |
| Contingent
Legislation | 76 |
| The Effective
Demise of the Nondelegation Doctrine | 78 |
| The Regulatory
State | 78 |
| Standards | 82 |
| Foreign
Affairs | 86 |
| Delegations to
the States | 86 |
| Delegation to
Private Persons | 87 |
| Delegation and
Individual Liberties | 88 |
| Punishment of
Violations | 89 |
| Investigatory
Power | 89 |
| CONGRESSIONAL
INVESTIGATIONS | 90 |
| Source of the
Power to Investigate | 90 |
| Investigations
of Conduct of Executive Department | 92 |
| Investigations
of Members of Congress | 93 |
| Investigations
in Aid of Legislation | 93 |
| Purpose | 93 |
| Protection of
Witnesses: Pertinency and Related Matters | 96 |
| Protection of
Witnesses; Constitutional Guarantees | 100 |
| Sanctions of
the Investigatory Power: Contempt | 103 |
| ARTICLE I | 105 |
| LEGISLATIVE
DEPARTMENT | 105 |
| Section 2. | The House of Representatives | 105 |
| Clause 1. | Congressional Districting | 105 |
| CONGRESSIONAL
DISTRICTING | 106 |
| ELECTOR
QUALIFICATIONS | 109 |
| Clause 2. | Qualifications of Members of Congress | 110 |
| QUALIFICATIONS
OF MEMBERS OF CONGRESS | 110 |
| When the
Qualifications Must Be Possessed | 110 |
| Exclusivity
of Constitutional Qualifications | 110 |
| Congressional
Additions | 110 |
| State
Additions | 113 |
| Clause 3. | Apportionment of Seats in the House | 114 |
| APPORTIONMENT OF
SEATS IN THE HOUSE | 114 |
| The Census
Requirement | 114 |
| Clause 4. | Vacancies | 116 |
| Clause 5. | Officers and Power of Impeachment | 116 |
| ARTICLE I | 116 |
| LEGISLATIVE
DEPARTMENT | 116 |
| Section 3. | The Senate | 116 |
| Clause 1. | Composition and Selection | 116 |
| Clause 2 | Classes of Senators | 116 |
| Clause 3. | Qualifications | 117 |
| Clause 4. | The Vice President | 117 |
| Clause 5. | Officers | 117 |
| Clause 6. | Trial of Impeachments | 117 |
| Clause 7. | Judgments on Impeachment | 117 |
| ARTICLE I | 117 |
| LEGISLATIVE
DEPARTMENT | 117 |
| Section 4. | Elections | 117 |
| Clause 1. | Congressional Power to Regulate | 117 |
| FEDERAL
LEGISLATION PROTECTING ELECTORAL PROCESS | 118 |
| Clause 2. | Time of Assembling | 121 |
| ARTICLE I | 121 |
| LEGISLATIVE
DEPARTMENT | 121 |
| Section 5. | Powers and Duties of the Houses | 121 |
| Clause 1. | Power to Judge Elections | 121 |
| Clause 2. | Rules of Proceedings | 121 |
| Clause 3. | Duty to Keep a Journal | 121 |
| Clause 4. | Adjournments | 121 |
| POWERS AND
DUTIES OF THE HOUSES | 122 |
| Judge Elections | 122 |
| Power To
Judge Elections | 122 |
| Quorum | 122 |
| “A Quorum To
Do Business” | 122 |
| Rules of
Proceedings | 123 |
| Rules of
Proceedings | 123 |
| Power Over
Members | 124 |
| Powers of the
Houses Over Members | 124 |
| Journal | 124 |
| Duty To Keep
a Journal | 125 |
| ARTICLE I | 125 |
| LEGISLATIVE
DEPARTMENT | 125 |
| Section 6. | Rights and Disabilities of Members | 125 |
| Clause 1. | Compensation and Immunities | 125 |
| Clause 2. | Disabilities | 125 |
| Compensation,
Privileges | 126 |
| COMPENSATION,
IMMUNITIES AND DISABILITIES OF MEMBERS | 126 |
| Congressional
Pay | 126 |
| Privilege
From Arrest | 127 |
| Privilege of
Speech or Debate | 127 |
| Members | 127 |
| Congressional
Employees | 132 |
| Appointment
to Executive Office | 134 |
| Incompatible
Offices | 135 |
| ARTICLE I | 135 |
| LEGISLATIVE
DEPARTMENT | 135 |
| Section 7. | Legislative Process | 135 |
| Clause 1. | Revenue Bills | 135 |
| Clause 2. | Approval by the President | 135 |
| Legislative
Process | 136 |
| Clause 3. | Presentation of Resolutions | 136 |
| THE LEGISLATIVE
PROCESS | 136 |
| Revenue Bills | 136 |
| Approval by
the President | 137 |
| The Veto
Power | 138 |
| Presentation
of Resolutions | 141 |
| The Legislative
Veto | 141 |
| ARTICLE I | 144 |
| LEGISLATIVE
DEPARTMENT | 144 |
| Section 8. | Powers of Congress | 144 |
| Clause 1. | Power to Tax and Spend | 144 |
| POWER TO TAX AND
SPEND | 144 |
| Kinds of
Taxes Permitted | 144 |
| Decline of the
Forbidden Subject Matter Test | 144 |
| Federal
Taxation of State Interests | 145 |
| Scope of State
Immunity From Federal Taxation | 147 |
| Uniformity
Requirement | 149 |
| PURPOSES OF
TAXATION | 150 |
| Regulation by
Taxation | 150 |
| Extermination
by Taxation | 151 |
| Promotion of
Business: Protective Tariff | 152 |
| SPENDING FOR THE
GENERAL WELFARE | 153 |
| Scope of the
Power | 153 |
| Social Security
Act Cases | 155 |
| An Unrestrained
Federal Spending Power | 156 |
| Conditional
Grants–in–Aid | 156 |
| Earmarked
Funds | 158 |
| Debts of the
United States | 158 |
| Clause 2. | Borrowing Power | 159 |
| BORROWING POWER | 159 |
| Clause 3. | Commerce Power | 160 |
| POWER TO
REGULATE COMMERCE | 160 |
| Purposes
Served by the Grant | 160 |
| Definition
of Terms | 160 |
| Commerce | 160 |
| Among the
Several States | 163 |
| Regulate | 164 |
| Necessary and
Proper Clause | 165 |
| Federalism
Limits on Exercise of Commerce Power | 166 |
| Illegal
Commerce | 167 |
| Interstate
Versus Foreign Commerce | 167 |
| Instruments
of Commerce | 169 |
| Congressional Regulation of Waterways | 170 |
| Navigation | 170 |
| Hydroelectric
Power; Flood Control | 173 |
| Congressional Regulation of Land Transportation | 175 |
| Federal
Stimulation of Land Transportation | 175 |
| Federal
Regulation of Land Transportation | 176 |
| Federal
Regulation of Intrastate Rates (The Shreveport Doctrine) | 178 |
| Federal
Protection of Labor in Interstate Rail Transportation | 179 |
| Regulation of
Other Agents of Carriage and Communications | 180 |
| Congressional Regulation of Commerce as Traffic | 181 |
| The Sherman
Act: Sugar Trust Case | 181 |
| Sherman Act
Revived | 183 |
| The “Current
of Commerce” Concept: The Swift Case | 183 |
| The Danbury
Hatters Case | 184 |
| Stockyards and
Grain Futures Acts | 185 |
| Securities and
Exchange Commission | 186 |
|
Congressional Regulation of Production and Industrial
Relations: Antidepression Legislation | 187 |
| National
Industrial Recovery Act | 187 |
| Agricultural
Adjustment Act | 188 |
| Bituminous
Coal Conservation Act | 188 |
| Railroad
Retirement Act | 189 |
| National Labor
Relations Act | 190 |
| Fair Labor
Standards Act | 192 |
| Agricultural
Marketing Agreement Act | 194 |
| Acts of
Congress Prohibiting Commerce | 196 |
| Foreign
Commerce: Jefferson’s Embargo | 196 |
| Foreign
Commerce: Protective Tariffs | 198 |
| Foreign
Commerce: Banned Articles | 198 |
| Interstate
Commerce: Power to Prohibit Questioned | 199 |
| Interstate
Commerce: National Prohibitions and State Police Power | 200 |
| The Lottery
Case | 200 |
| The Darby
Case | 202 |
| The Commerce
Clause as a Source of National Police Power | 203 |
| Civil Rights | 207 |
| Criminal Law | 208 |
| THE COMMERCE
CLAUSE AS A RESTRAINT ON STATE POWERS | 209 |
| Doctrinal
Background | 209 |
| The State
Proprietary Activity Exception | 216 |
| Congressional
Authorization of Impermissible State Action | 216 |
| State
Taxation and Regulation: The Old Law | 220 |
| General
Considerations | 220 |
| Taxation | 221 |
| Regulation | 224 |
| State
Taxation and Regulation: The Modern Law | 227 |
| General
Considerations | 227 |
| Taxation | 228 |
| Nexus | 229 |
| Apportionment | 231 |
| Discrimination | 232 |
| Benefit
Relationship | 233 |
| Regulation | 233 |
| Foreign
Commerce and State Powers | 240 |
| CONCURRENT
FEDERAL AND STATE JURISDICTION | 243 |
| The General
Issue: Preemption | 243 |
| Preemption
Standards | 245 |
| The Standards
Applied | 246 |
| Federal Versus
State Labor Laws | 254 |
| COMMERCE WITH
INDIAN TRIBES | 260 |
| Clause 4. | Naturalization and Bankruptcies | 265 |
| NATURALIZATION
AND CITIZENSHIP | 265 |
| Nature and
Scope of Congress’ Power | 265 |
| Categories
of Citizens: Birth and Naturalization | 267 |
| The
Naturalization of Aliens | 268 |
| Rights of
Naturalized Persons | 270 |
| Expatriation: Loss of Citizenship | 272 |
| ALIENS | 276 |
| The Power of
Congress to Exclude Aliens | 276 |
| Deportation | 280 |
| BANKRUPTCY | 281 |
| Persons Who
May Be Released From Debt | 281 |
|
Liberalization of Relief Granted and Expansion of the Rights
of the Trustee | 282 |
| Constitutional Limitations on the Bankruptcy Power | 283 |
| Constitutional Status of State Insolvency Laws: Preemption | 284 |
| Cls. 5 and
6—Fiscal and Monetary Powers | 286 |
| Clauses 5 and 6. | Money | 286 |
| FISCAL AND
MONETARY POWERS OF CONGRESS | 287 |
| Coinage,
Weights, and Measures | 287 |
| Punishment
of Counterfeiting | 287 |
| Borrowing
Power Versus Fiscal Power | 288 |
| Clause 7. | Post Office | 289 |
| POSTAL POWER | 289 |
| “Establish” | 289 |
| Power To
Protect the Mails | 290 |
| Power To
Prevent Harmful Use of the Postal Facilities | 290 |
| Exclusive
Power as an Adjunct to Other Powers | 292 |
| State
Regulations Affecting the Mails | 292 |
| Clause 8. | Copyrights and Patents | 293 |
| COPYRIGHTS AND
PATENTS | 294 |
| Scope of the
Power | 294 |
| Patentable
Discoveries | 295 |
| Procedure in
Issuing Patents | 297 |
| Nature and
Scope of the Right Secured | 298 |
| Power of
Congress Over Patent Rights | 299 |
| State Power
Affecting Patents and Copyrights | 300 |
| Trade–Marks
and Advertisements | 302 |
| Cls. 9 and
10—Piracies and Felonies | 302 |
| Clause 9. | Creation of Courts | 302 |
| Clause 10. | Maritime Crimes | 302 |
| PIRACIES,
FELONIES, AND OFFENSES AGAINST THE LAW OF NATIONS | 303 |
| Origin of
the Clause | 303 |
| Definition
of Offenses | 303 |
| Extraterritorial Reach of the Power | 304 |
| Cls. 11, 12,
13, and 14—The War Power | 305 |
| Clauses 11, 12, 13, and 14. | War; Military Establishment | 305 |
| THE WAR POWER | 305 |
| Source and
Scope | 305 |
| Three
Theories | 305 |
| An Inherent
Power | 306 |
| A Complexus of
Granted Powers | 307 |
| Declaration
of War | 307 |
| THE POWER TO
RAISE AND MAINTAIN ARMED FORCES | 311 |
| Purpose of
Specific Grants | 311 |
| Time Limit
on Appropriations for the Army | 312 |
| Conscription | 312 |
| Care of the
Armed Forces | 314 |
| Trial and
Punishment of Offenses: Servicemen, Civilian Employees, and
Dependents | 316 |
| Servicemen | 316 |
| Civilians and
Dependents | 319 |
| WAR LEGISLATION | 319 |
| War Powers
in Peacetime | 319 |
| Delegation
of Legislative Power in Wartime | 322 |
| CONSTITUTIONAL
RIGHTS IN WARTIME | 324 |
| Constitution
and the Advance of the Flag | 324 |
| Theater of
Military Operations | 324 |
| Enemy
Country | 324 |
| Enemy
Property | 325 |
| Prizes of
War | 326 |
| The
Constitution at Home in Wartime | 326 |
| Personal
Liberty | 326 |
| Enemy Aliens | 328 |
| Eminent
Domain | 329 |
| Rent and Price
Controls | 330 |
| Cls. 15 and
16—Power over the Militia | 331 |
| Clauses 15 and 16. | The Militia | 331 |
| THE MILITIA
CLAUSE | 331 |
| Calling Out
the Militia | 331 |
| Regulation
of the Militia | 332 |
| Clause 17. | District of Columbia; Federal Property | 333 |
| SEAT OF THE
GOVERNMENT | 333 |
| AUTHORITY OVER
PLACES PURCHASED | 337 |
| “Places” | 337 |
| Duration of
Federal Jurisdiction | 338 |
| Reservation
of Jurisdiction by States | 339 |
| Clause 18. | Necessary and Proper Clause | 339 |
| COEFFICIENT OR
ELASTIC CLAUSE | 339 |
| Scope of
Incidental Powers | 339 |
| Operation of
Coefficient Clause | 340 |
| Definition
of Punishment and Crimes | 341 |
| Chartering
of Banks | 341 |
| Currency
Regulations | 342 |
| Power to
Charter Corporations | 342 |
| Courts and
Judicial Proceedings | 343 |
| Special Acts
Concerning Claims | 343 |
| Maritime Law | 344 |
| ARTICLE I | 344 |
| LEGISLATIVE
DEPARTMENT | 344 |
| Section 9. | Powers Denied to Congress | 344 |
| Clause 1. | Importation of Slaves | 344 |
| POWERS DENIED
TO CONGRESS | 344 |
| General
Purpose of Section 9 | 344 |
| Clause 2. | Habeas Corpus Suspension | 345 |
| Clause 3. | Bills of Attainder and Ex Post Facto Laws | 346 |
| Bills of
Attainder | 347 |
| Ex Post
Facto Laws | 350 |
| Definition | 350 |
| What
Constitutes Punishment | 351 |
| Change in
Place or Mode of Trial | 352 |
| Clause 4. | Taxes | 352 |
| Direct Taxes | 352 |
| The Hylton
Case | 352 |
| From the
Hylton to the Pollock Case | 353 |
| Restriction of
the Pollock Decision | 354 |
| Miscellaneous | 355 |
| Clause 5. | Duties on Exports from States | 356 |
| Taxes on
Exports | 356 |
| Stamp Taxes | 356 |
| Clause 6. | Preference to Ports | 357 |
| The “No
Preference” Clause | 357 |
| Clause 7. | Appropriations and Accounting of Public Money | 358 |
| Appropriations | 358 |
| Payment of
Claims | 358 |
| Clause 8. | Titles of Nobility; Presents | 359 |
| ARTICLE I | 359 |
| LEGISLATIVE
DEPARTMENT | 359 |
| Section 10. | Powers Denied to the States | 359 |
| POWERS DENIED
TO THE STATES | 360 |
| Clause 1. | Not to Make Treaties, Coin Money, Pass Ex Post Facto
Laws, Impair Contracts | 359 |
| Treaties,
Alliances, or Confederations | 360 |
| Bills of
Credit | 360 |
| Legal Tender | 361 |
| Bills of
Attainder | 361 |
| Ex Post
Facto Laws | 362 |
| Scope of the
Provision | 362 |
| Denial of
Future Privileges to Past Offenders | 363 |
| Changes in
Punishment | 363 |
| Changes in
Procedure | 365 |
| Obligation
of Contracts | 366 |
| “Law”
Defined | 366 |
| Status of
Judicial Decision | 366 |
| “Obligation”
Defined | 369 |
| “Impair”
Defined | 369 |
| Vested Rights
Not Included | 370 |
| Public Grants
That Are Not “Contracts” | 370 |
| Tax
Exemptions: When Not “Contracts” | 372 |
| “Contracts”
Include Public Contracts and Corporate Charters | 374 |
| Corporate
Charters: Different Ways of Regarding | 377 |
| Reservation of
Right to Alter or Repeal Corporate Charters | 379 |
| Corporation
Subject to the Law and Police Power | 380 |
| Strict
Construction of Charters, Tax Exemptions | 381 |
| Strict
Construction and the Police Power | 384 |
| Doctrine of
Inalienability as Applied to Eminent Domain, Taxing, and
Police Powers | 385 |
| Private
Contracts | 388 |
| Remedy a Part
of the Private Obligation | 389 |
| Private
Contracts and the Police Power | 392 |
| Evaluation of
the Clause Today | 395 |
| Clause 2. | Not to Levy Duties on Exports and Imports | 398 |
| Duties on
Exports or Imports | 399 |
| Scope | 399 |
| Privilege
Taxes | 400 |
| Property
Taxes | 400 |
| Inspection
Laws | 401 |
| Clause 3. | Not to Lay Tonnage Duties, Keep Troops, Make Compacts,
or Engage in War | 402 |
| Tonnage
Duties | 402 |
| Keeping
Troops | 403 |
| Interstate
Compacts | 403 |
| Background of
Clause | 403 |
| Subject Matter
of Interstate Compacts | 404 |
| Consent of
Congress | 405 |
| Grants of
Franchise to Corporations by Two States | 406 |
| Legal Effect
of Interstate Compacts | 406 |
