Ep. 26: U.S. Constitution – Art. 1, Sec. 6 – Congressional Pay & Privileges

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Ep. 26: U.S. Constitution - Art. 1, Sec. 6 - Congressional Pay & Privileges
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Show Notes

In this episode, Jason and Matt discuss clauses 2 and 3 of Article I, Section 8 which authorize Congress to borrow money and regulate Commerce. However, they also discuss the specific debates around paper (fiat) currency and the definitions of terms in the Commerce clause, one of the most abused clauses in the Constitution.

[2]“[The Congress shall have Power] To borrow Money on the credit of the United States”

[3] “[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes”

  • Jason’s article “On General Welfare”
  • Records of the Federal Convention (see vol 1, vol 2, vol 3).
  • Original proposal for Clause 2: “[The Congress shall have Power] to borrow Money and emit bills on the credit of the United States.” [Emphasis added]
    • Gouveneur Morris proposed striking out the phrase “and emit bills on the credit of the United States”. The convention voted to strike out this phrase specifically rejecting the authority of Congress to issue paper money.
      • 9 states voted to strike out
      • 2 states voted to keep it
  • Madison’s Letter to J.C. Cabell regarding the commerce clause:
    • “Yet it is very certain that [the Commerce Clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged”
  • Definition of Commerce from Samuel Johnson’s Dictionary:
    • “Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick”
  • Hamilton’s descriptions of commerce in the Federalist Papers. Note the uses of various forms of “trade”, “exchange”, “interchange”, “circulation”, and how they are used in opposition to forms of “production”, “commodities”, “agriculture”, “finance”. This demonstrates that commerce does not include any of these concepts.
    • Federalist #11
      • An unrestrained intercourse between the States themselves will advance the trade of each by an interchange of their respective productions, not only for the supply of reciprocal wants at home, but for exportation to foreign markets. The veins of commerce in every part will be replenished and will acquire additional motion and vigor from a free circulation of the commodities of every part. Commercial enterprise will have much greater scope from the diversity in the productions of different States” (Emphasis added)
    • Federalist #12
      • “The often-agitated question between agriculture and commerce as, from indubitable experience, received a decision which has silenced the rivalship that once subsisted between them, and has proved, to the satisfaction of their friends, that their interests are intimately blended and interwoven.” (Emphasis added)
    • Federalist #17
      • Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction. (Emphasis added)
    • Federalist #21
      • Causes of the wealth of nations include “situation, soil, climate, the nature of the productions, the nature of the government, the genius of the citizens, the degree of information they possess, the state of commerce, of arts, of industry.” (Emphasis added)
    • Federalist #35
      • Will not the merchant understand and be disposed to cultivate, as far as may be proper, the interests of the mechanic and manufacturing arts to which his commerce is so nearly allied?” (Emphasis added)
    • To power to regulate does not include the power to prohibit
      • The usage of the forms of “regulate” in the rest of the Constitution demonstrate that it is used in opposition to forms of “prohibit”. See underlines below.
      • U.S. Constitution, Article III, Section 2
        • In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
      • U.S. Constitution, Article IV, Section 3
        • “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”

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