Powers Denied To The States: A Constitutional Essay

In pondering the questions of the origin of the American Civil War [1] and the question of state debt [2], one of the issues one deals with is what limitations are placed by the U.S. Constitution on the power of states.  Article I, Section 10 of the US Constitution places various prohibitions on the states, and I would like to discuss these powers denied to the states, and why they are denied.

Article I, Section 10 of the US Constitution reads as follows:

“No 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.

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 [3].”

Let us therefore examine the limitations of state power according to the U.S. Constitution.  It greatly irritates me when people profess to be devotees of constitutional government when they themselves are flagrant offenders against it, and in few clauses of the U.S. Constitution has this been more the case with the supposed friends of constitutional limitations than in this passage.  These prohibitions are plain and easy to understand, and yet an examination of the Civil War will demonstrate that those politicians who loudly proclaimed that they were acting merely to defend their constitutional rights had no qualms about violating the law they claimed to serve with impunity and a total lack of repentance shown by their wicked and evil descendants who still preach and practice such lies today.

1. No State shall enter into any Treaty, Alliance, or Confederation

Once a state ratified the U.S. Constitution, it was prohibited from acting as a sovereign nation because entering the United States was a surrender of its freedoms as a nation to conduct its own foreign affairs.  To form a treaty or alliance or confederation (such as the Confederate States of America) was to engage in treason against the rightful and legitimate authority of the United States, which had the legitimate right to act against such acts of rebellion with force.  Therefore, the Confederate States of America was an unconstitutional entity lacking in legitimacy, and all of those who participated in its founding and supported it by arms or by rhetoric, or who support it still, are guilty of high treason and have violated the U.S. Constitution with their actions and speech.

2. No State shall grant Letters of Marquee and Reprisal

This prohibition of a right granted to sovereign nations, prevented states from engaging lawfully in privateering.  This prohibition made the rebel attacks on Union shipping unconstitutional and illegal, because commerce raiders were forbidden to states under the U.S. Constitution.  Therefore those who engaged in such practices were guilty of piracy and were under the lawful penalty of death.

3. No State shall coin Money, emit Bills of Credit, make any Thing but gold and silver Coin a Tender in Payment of Debts

It is this prohibition which prevents states from coining (or printing, as some would say) money as legal tender to pay for debts.  Now, there is some question as to whether this power is granted to the federal government (and even if it is, I believe it should not be), but it is clearly denied to the states.  If the states want to discharge their debts legally (and those debts are great), they must do so properly.  The fact that this is already nearly impossible to do so, and would be ruinous to attempt for those areas in the sorest trouble, means that these debts are likely to be discharged either by bankruptcy or by their assumption by the federal government.  This is merely to shift the mischief onto some other authority, and will not diminish the mischief in any way.  It should be noted that the “legal tender” printed by the Confederacy during the Civil War was itself illegal, and any money printed by the states during that time would also have been illegal money, making those who authorized such counterfeiting to be guilty of that heinous crime and subject to the appropriate judgment.

4. No State shall pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility

The prohibitions listed in this section are prohibitions previously made on the federal government in other parts of the U.S. Constitution, and so are prohibited to the states as well.  This particular set of prohibitions means that states do not have the right to do that which is denied to the federal government.  That which is forbidden to the nation is also prohibited to the state.  It is interesting that laws impairing contracts are forbidden to the states–if this includes the contracts made by the states and others, this might place the states in a tricky legal bond, unless it can be found that those contracts made were against the public interest and therefore void, a determination that might need to be made in the courts, subject to judicial review.

5. 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.

This set of prohibitions is a lot to digest.  This particular set of prohibitions gives Congress the responsibility to regulate state charges for inspection fees at ports, and prohibits states from collecting their own duties and tariffs without the permission of the federal government.  Additionally, those taxes assessed on trade by state governments in excess of enforcement expenses are constitutionally bound to enter the treasury of the federal government–states were not allowed to collect their own funds over and above their expenses, or to regulate trade in such a way as to pad their own local accounts.  This is an intriguing demonstration of the supremacy and authority of the federal government over state governments that is applicable to other organizations where the federalism question is present.

6. 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

Again, this particular set of limitations prevents states from acting as sovereign nations.  The permission of Congress is necessary for states to lay any kind of duties at all on trade, or to keep troops or warships.  Without the consent of Congress, states cannot participate in any military activities–not even the calling up of militias.  Likewise, states are forbidden without federal permission to engage in war unless they are invaded by another nation and the assistance of Congress is unavailable.  The “exception” to this prohibition does not grant a state the constitutional right to resist the national forces of one’s own nation (i.e. the United States), as the entrance of such a force is not a foreign invasion.

Making Sense of the Prohibitions

These Constitutional prohibitions make the funding or waging of secession unconstitutional.  Those areas that seek to resist the lawful and legitimate authority of the federal government are faced with two options.  Either they submit to the authority of the federal government and place such disputes over the rightness of actions in the appropriate sphere (either Congress or the Courts) subject to federal enforcement, or they admit themselves to be rebels who have violated the Constitution and are criminals subject to punishment, including imprisonment, death, or the forfeiture of property.  There is no legal and constitutional grounds for secession allowed to states.  Clearly this has serious repercussions for how we examine the Civil War in light of the clear demonstration that the U.S. Constitution denies to states the rights of sovereign nations because the federal government is indisputably sovereign in matters of diplomacy, the military, and foreign trade.

The usefulness and importance of these constitutional limitations on the supposed sovereignty of states (which have various local police powers and local responsibilities, it is true, but are not sovereign over and above the federal government) is not limited to making secession unconstitutional and marking its supporters (both in the 19th century and today) as traitors.  Rather, these prohibitions remain in force today limiting the behavior of states with regard to their own activities, preventing them from certain revenue options (including inflating their way out of debt, an option that ought to be denied to any government, as well as putting tariffs on international or interstate trade, or collecting duties above and beyond that which is necessary to pay for enforcement of inspection laws, and that only with the consent of Congress).

Seeing then that these prohibitions are useful both in examining history and appropriating proper blame on those traitors, pirates, and counterfeiters of our nation’s history which abrogated the constitution but pay lip service to obedience of the rule of law, as well as limiting states in their ability to escape the consequences of their present folly, let us take some time to reflect upon some of the purposes of our respect for the rule of law.  The rule of law is not primarily an instrument by which we limit the rights of others, but is primarily an instrument for the development of self-discipline, seeing as we must discipline ourselves and limit our own behavior before we are qualified to rule over anyone else.  Self-government precedes rule over others.  Let us not forget that if we cannot restrain ourselves from sin and folly, the effects that will be the ruin of ourselves individually, of our families, our private institutions, our churches, and our civil governments.  This day of judgment appears closer everyday, unless we repent.

[1] http://edgeinducedcohesion.wordpress.com/2011/02/02/book-review-apostles-of-disunion-southern-secession-commissioners-and-the-causes-of-the-civil-war/

[2] http://edgeinducedcohesion.wordpress.com/2011/02/09/bankrupcy-the-nuclear-option/

[3] http://www.usconstitution.net/const.html#A1Sec10

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About nathanalbright

I'm a person with diverse interests who loves to read. If you want to know something about me, just ask.
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5 Responses to Powers Denied To The States: A Constitutional Essay

  1. Pingback: Powers Denied To Congress: A Constitutional Essay | Edge Induced Cohesion

  2. Pingback: Edge Induced Cohesion: 2012 In Review (Version Two) | Edge Induced Cohesion

  3. tyler says:

    Does the constitution require that a state once entered into the union may never leave it? While the powers denied to the states make it clear that they are not to operate as individual nations while in the union, all of the (confederate) states at least in their own eyes exited the union before entering the confederacy (with the exception of the states that were given stars on the flag though they were still occupied by union forces and deeply divided politically i.e. Kentucky). Lincoln’s government held that they were still in the union if in opposition to it, but the south maintained that they had in the same manner as the founders, Jefferson et al. severed their ties with the parent nation and then went about nation building before the war was over that would decided the legality of their actions. In so doing they established a new constitution that was to rule this new nation. perhaps a better question as to how criminal this opposition government was would be to see if they even held themselves accountable to this new constitution that they made. Many in the south during the war held that they had fallen short of even this measure. But i have not done much study of the confederate constitution.

    • You ask some good questions, but the answers are not necessarily very positive. There is a great deal of evidence that the states which rebelled were already violating the constitution (particularly, the guarantee of a republican government) because of the coercion within those states that had taken place against unionists. Likewise, the Constitution itself contains no provisions for lawful succession, meaning that the central government was fully within its rights to coerce those states which rebelled back into the Union if it had the power (which it did).

  4. Pingback: Edge Induced Cohesion: 2013 In Review (Part Two) | Edge Induced Cohesion

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