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Constitutional Guidance for Lawmakers Series

1. Support and Defend: Understanding the Oath of Office

2. Legislative Powers: Not Yours to Give Away

3. The Constitution in One Sentence: Understanding the Tenth Amendment

4. Enough Is Enough: Why General Welfare Limits Spending

5. Commerce, Commerce, Everywhere: The Uses and Abuses of the Commerce Clause

6. Not So Sweeping After All: The Limits of the Necessary and Proper Clause

7. They Can’t Spend What You Don’t Approve: Rethinking the Appropriations Clause

8. Hands Off My Purse! Why Money Bills Originate in the House

9. How a Bill Becomes a Law: The Constitutional Way

10. Article V: Congress, Conventions, and Constitutional Amendments

11. Defining Citizens: Congress, Citizenship, and the Meaning of the Fourteenth Amendment

12. You Can Borrow, But You Can’t Hide: The Prudential Limits of the Borrowing Clause

13. The Sword and the Purse (Part 1); The Role of Congress in War

14. The Sword and the Purse (Part 2); The President as Commander in Chief

15. Faith, Freedom, and the First Amendment: Guarantee of Religious Liberty

16. The Second Amendment and the Inalienable Right to Self-Defense


Support and Defend: Understanding the Oath of Office - Report #1

At the start of each new Congress, all Members beginning a new term of office (the entire House of Representative and one-third of the Senate) take an oath to support and defend the Constitution of the United States. In doing so, the Members of Congress perform an act that harkens back to the country’s founding and its first principles. As it applies to Members of Congress, the “Oaths Clause” plays an important role by obliging them to observe the limits of their authority and act in accordance with the powers delegated to them by the Constitution. The oath also serves as a solemn reminder that the duty to uphold the Constitution is not the exclusive or final responsibility of the Judiciary but is shared by Congress and the President (per Article II, Section 1) as co-equal branches of the United States government. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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Legislative Powers: Not Yours to Give Away - Report #2

Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the “accumulation of all powers, legislative, executive, and judiciary, in the same hands,” writes James Madison in Federalist No. 47, “may justly be pronounced the very definition of tyranny.” While the executive must exercise some discretion in the application of law, lawmaking remains the prerogative of Congress. Since the New Deal, the Supreme Court has unfortunately sanctioned ever greater delegations of legislative power to administrative agencies. That the courts have flouted this principle does not mean that Congress can or should ignore this element of constitutional construction. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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The Constitution in One Sentence: Understanding the Tenth Amendment - Report #3

In a certain sense, the Tenth Amendment—the last of the 10 amendments that make up the Bill of Rights—is but a truism that adds nothing to the original Constitution. Since the federal government only possesses those powers which are delegated to it (Article I, Section 1), this amendment merely restates that all powers not delegated are in fact reserved to the States or to the sovereign people. In this sense, the Tenth Amendment concisely articulates the very idea and structure of a government of limited powers. The Tenth Amendment reinforces the federal system created by the Constitution and acts as a bulwark against federal intrusion on state authority and individual liberty. While the Supreme Court has countenanced a far-reaching expansion of federal power since the New Deal, Congress, as a co-equal branch of government, is not bound by these precedents and should uphold the concept of federalism embodied in this amendment. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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Enough Is Enough: Why General Welfare Limits Spending - Report #4

Perhaps no other clause in the Constitution generated as much debate among the Founders as the “Spending Clause”—the first of the 18 powers granted to Congress under Article I, Section 8. Alexander Hamilton and James Madison, the principal authors of The Federalist, famously disagreed about the meaning of “general Welfare” and the limits to Congress’s spending power. For the past 70 years, however, this fruitful debate over the meaning of the Constitution has been replaced by the view that there are no limitations whatsoever on Congress’s power to spend and that the “general Welfare” means whatever Congress says it means. Today, no project is deemed too local or too narrow not to fall under the “general Welfare” rubric. It is therefore incumbent upon Members of Congress to consider, once again, the limits of their spending power and recognize, as even Hamilton did, that it is not unlimited. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers..

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Commerce, Commerce, Everywhere: The Uses and Abuses of the Commerce Clause - Report #5

Over the course of the last decades, the commerce clause has been used as a primary source for the regulatory expansion of the national government. This reading of the clause, granting virtually unlimited regulatory power over the economy to the federal government, came out of a series of Supreme Court decisions at the time of the New Deal. In its original meaning, the clause functioned primarily as a constraint upon state interference in interstate commerce. Of the nearly 1,400 pre–20th century Supreme Court cases concerning this clause, the overwhelming proportion arose from state legislation. In recent years, the Supreme Court has for the first time since the New Deal begun to rein in Congress’s power under the commerce clause. While such developments are welcome, Congress, as a co-equal branch of government, need not take its cues from the Supreme Court and should take the lead in restoring its own limits to the commerce power. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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Not So Sweeping After All: The Limits of the Necessary and Proper Clause - Report #6

Although often commonly referred to as the “sweeping clause” or the “elastic clause,” the “necessary and proper” clause is not in fact as expansive as its nicknames suggests. After listing the 17 specific powers delegated to Congress, Article I, Section 8 of the Constitution concludes by specifying that Congress has the power to pass any law both necessary and proper to implement the powers already delegated to it. This lawmaking power is limited and defined by the ends for which it is delegated: “for carrying into execution the foregoing powers.” All the clause does is to make explicit a power already implied in the grants of powers in Section 8 and elsewhere. The “necessary and proper” clause is thus a means for Congress to achieve its constitutionally mandated ends. As James Madison wrote in Federalist No. 44 to explain the meaning of the clause: “No axiom is more clearly established in law, or reason, than that wherever the end is required, the means are authorized.” This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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They Can’t Spend What You Don’t Approve: Rethinking the Appropriations Clause - Report #7

Separation of powers, though never mentioned by name in the Constitution, is one of the key principles that undergirds the government created by the Framers. For the concept to have any teeth in it, the Framers realized the need to go beyond a mere distribution of powers among the three branches of government. James Madison famously warned in Federalist No. 48 of the inadequacy of mere “parchment barriers.” Each branch of government must therefore also be granted powers that will allow it to check the other two branches. It is in this spirit that we should understand the Appropriations Clause. Although it appears in the section of the Constitution restricting the powers of Congress, it in fact functions as a key legislative check on the executive. The President and those acting under executive authority can spend only what Congress permits them to spend. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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Hands Off My Purse! Why Money Bills Originate in the House - Report #8

Legislative checks and balances is one of the key inventions that convinced Alexander Hamilton in Federalist No. 9 that the cause of liberty was not lost, in spite of the failure of previous republics throughout the ages. According to the Framers, powers ought not only to be distributed between the three branches of government (separation of powers), but Congress, as the most powerful branch, should be divided into two, with different constituencies, term lengths, sizes, and functions for each house. In this spirit, the Constitution allocates the power to raise revenue—part of the power of the purse—to the House of Representatives, the legislative body closest to the people. Regrettably, this clause has had little effect in practice as the Senate has construed its power to amend so broadly as to replace the entire text of revenue bills that had originated in the House. Members of the House of Representatives should be more zealous in protecting this exclusive prerogative. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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How a Bill Becomes a Law: The Constitutional Way - Report #9

In order to ensure the vitality of the fundamental constitutional principle of separation of powers, the Framers gave the President what Madison in Federalist No. 47 called a “partial agency” in the legislative process. The President can propose measures to Congress (Article II, Section 7, Clause 2) and either approve or veto bills passed by Congress. It is worth noting that the executive veto is not a fiat—the President must return the vetoed bill to Congress “with his Objections” so that Congress may reconsider the bill in light of these objections. The Presentment Clause serves not only to delineate the President’s role in the legislative process; its detailed stipulations also make clear that Congress may not bypass them, for example, by delegating its legislative powers to administrative agencies (see Constitutional Guidance for Lawmakers No. 1 on Article I, Section 1: “Legislative Powers: Not Yours to Give Away ”). The Constitution insists that laws must be approved by both houses and the President. Administrative regulations circumvent both. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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Article V: Congress, Conventions, and Constitutional Amendments - Report #10

Advocates of a “living” Constitution argue that the Founders' Constitution is hopelessly outdated and unable to grow and adapt to the times. The amendment procedure detailed in Article V belies such claims. As Madison explains in The Federalist, the amendment procedure allows subsequent generations to correct errors and make whatever "useful alterations will be suggested by experience." Yet at the same time, the difficulty of constitutional amendment prevents the Constitution from being deprived "of that veneration, which time bestows on everything, and without which the wisest and freest governments would not possess the requisite stability." By design, the amendment process requires extensive deliberation and ensures that amendments are the settled opinion of the American people. To date, as was expected, every amendment to the Constitution has been proposed through Congress before being ratified by the states. Although there have been several attempts to call an Article V amending convention—some of which have driven Congress to act—the extensive unknowns and significant risks involved in that uncharted option make congressional proposal of amendments abundantly more prudent and the most viable method to achieve serious constitutional reform. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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Defining Citizens: Congress, Citizenship, and the Meaning of the Fourteenth Amendment - Report #11

There is a widespread belief that the Citizenship Clause of the Fourteenth Amendment automatically confers citizenship to anybody simply born on U.S. soil, regardless of the legal status of his or her parents. In reality, birthright citizenship is incompatible not only with the text of the Citizenship Clause, but more fundamentally, with the principle of consent—one of the bedrocks of republican government. From a constitutional point of view, the inclusion of the clause “and subject to the jurisdiction thereof” indicates that mere birth is not sufficient to acquire citizenship. Congress, consistent with the highest principles of equal citizenship and consent, would do well to clarify who is “subject to the jurisdiction” of the United States. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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You Can Borrow, But You Can’t Hide: The Prudential Limits of the Borrowing Clause - Report #12

So important is the power to borrow money that it was one of the few real powers expressly delegated to the weak and ineffectual government created under the Articles of Confederation. In drafting the Constitution, the Framers recognized the importance of empowering the government to provide for emergencies—in particular in times of war—and did not therefore place a limit on how much money Congress could borrow. They deemed it wise to leave this a political question to be determined on prudential grounds by our elected representatives. That is not to say, of course, that Congress should borrow recklessly. As George Washington exhorted his fellow Americans in his Farewell Address: “As a very important source of strength and security, cherish public credit. One method of preserving it is to use it as sparingly as possible.” With the federal public debt now at a staggering $14 trillion, it is high time Congress reined in its profligacy. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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The Sword and the Purse (Part 1); The Role of Congress in War - Report #13

From the retaliatory raids on the Barbary pirates at the turn of the 19th century to the ongoing bombing campaign in Libya, American Presidents have deployed military force several hundred times in the nation’s history. Yet Congress has declared war on only five occasions—and only once to initiate hostilities (the War of 1812 against Britain). There is no inconsistency in this. The Framers of the Constitution carefully distinguished a declaration of war—which alters the legal relationships between subjects of warring nations—from the act of waging war. Given the exigencies of warfare, the Framers roundly rejected the idea of placing the power to wage war in the legislative branch and vested it instead in the executive. Congress cannot tell the President how to deploy the military forces it raises and funds. Ultimately of course, Congress’s control of the purse strings constitutes a powerful check on the President. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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The Sword and the Purse (Part 2); The President as Commander in Chief - Report #14

Under the Articles of Confederation, all war power was vested in a Congress and the United States lacked a formal executive. This arrangement proved unworkable as America’s foreign policy and defense, deprived of executive guidance, floundered. Recognizing the need for an executive to act with swiftness and dispatch in response to foreign threats, the Framers of the Constitution vested the President with full “executive power” and entrusted him, as commander in chief, with paramount authority for national security. The President therefore has ultimate discretion over the deployment of soldiers and nearly all aspects of the conduct of war—including the initiation of hostilities. Ever mindful of the dangers of unfettered powers, the Framers were careful to empower Congress to check the President by controlling the funding of the military. Congress also possesses the exclusive power to declare war (see Part 1) and to regulate the military. This essay is adapted from The Heritage Guide to the Constitution for a new series providing constitutional guidance for lawmakers.

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Faith, Freedom, and the First Amendment: The Guarantee of Religious Liberty - Report #15

Freedom of religion is at the heart of the American understanding of liberty. Under our constitutional order, the free exercise of religion is not a mere matter of toleration but an inalienable natural right. As George Washington explained in his famous letter to the Hebrew Congregation at Newport: “All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” There are, of course, some limits to the free exercise of religion. Citizens cannot invoke the First Amendment to break general laws (although exemptions may be granted). But within the confines of the law, all citizens have the same right of conscience. This essay is adapted from The Heritage Guide to the Constitution for a series providing constitutional guidance for lawmakers.

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The Second Amendment and the Inalienable Right to Self-Defense - Report #16

Contemporary debates about the meaning of the Second Amendment—is it a collective right or an individual right?—would have been incomprehensible to the Founders. Everyone at the time agreed that the federal government had no power to infringe on the right of the people to keep and bear arms. Contemporary debates for the most part also fail to address the essential question of why the right to bear arms was enshrined in the Constitution in the first place. The right to self-defense and to the means of defending oneself is a basic natural right that grows out of the right to life. The Second Amendment therefore does not grant the people a new right; it merely recognizes the inalienable natural right to self-defense. Lawmakers may outlaw certain types of weapons, but they may not disarm the citizenry. This essay is adapted from the second edition of The Heritage Guide to the Constitution, to be published in the fall of 2014 by Regnery.

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