Article I, Section 9 Lists the Things Congress May Never Do to You

Ask a room of educated Americans where the Constitution protects individual rights, and nearly every hand will point to the Bill of Rights. Ask where the original 1787 Constitution protects them, and the room goes quiet. Somebody may mention the jury trial guarantee in Article III. Somebody else will look at the ceiling. Here is the answer that should be taught in every civics class: right in the middle of Article I, in a section most people skip on the way to the presidency.

Article I, Section 9 is a list of things Congress may never do. It was written before anyone had drafted a single amendment. It protects the individual directly, against the national legislature, in plain language. When Hamilton argued in Federalist 84 that the Constitution did not need a separate bill of rights, Section 9 was a large part of his evidence; the argument is told in Hamilton Argued in Federalist 84 That a Bill of Rights Could Be Dangerous. Let me take the section clause by clause, with the history behind each, and show why these restrictions still matter.

Why a list of prohibitions at all

The Constitution grants Congress a limited set of powers in Section 8. Then, in Section 9, it forbids certain uses of power. If federal powers are limited, why would you need to forbid anything?

The founders answered with caution. A granted power, used creatively, might reach further than expected. The taxing power might be used to tax exports. The power over courts might be used to suspend habeas corpus. The power to punish crimes might be used to pass laws punishing acts after the fact. So the delegates did not rely only on the limited list. They added an explicit list of things beyond the reach of any power. That is defense in depth, and it reflects a sober view of human nature: men entrusted with power will test its edges, so mark the edges clearly.

There are eight clauses. Here they are in order.

Clause 1, the slave trade and the year 1808

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

This is the hardest clause to read, and it should be read honestly. "Such Persons" meant enslaved Africans brought into the country. The Deep South delegations, especially South Carolina and Georgia, insisted on protecting the slave trade and threatened to reject the Constitution without it. The compromise forbade Congress to ban the trade for twenty years.

Notice two things. First, the word "slave" does not appear. Madison, as he recorded in his notes, thought it wrong to admit in the Constitution the idea that there could be property in men; the story is in Madison Kept the Idea of Property in Men Out of the Constitution's Words. Second, the clause was a time limit. It anticipated a ban. Article V protected this clause from amendment before 1808, which tells you how hard the bargain was, but it also put an end date on the protection.

Congress acted at the first moment it could. President Thomas Jefferson signed the Act Prohibiting Importation of Slaves on March 2, 1807, and it took effect on January 1, 1808, the earliest date the Constitution allowed. The clause is a shameful compromise and also a countdown. Both are true.

Clause 2, habeas corpus

The 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.

The writ of habeas corpus requires a jailer to bring a prisoner before a judge and show lawful cause for holding him. If there is no lawful cause, the prisoner goes free. It is the single most practical protection against arbitrary imprisonment ever devised.

The clause does not create the writ; it assumes it. It forbids suspension except in rebellion or invasion, and only when public safety requires it. Hamilton, in Federalist 84, quoted Blackstone's warning that arbitrary imprisonment has been in all ages one of the favorite and most formidable instruments of tyranny. The full history, from the English Habeas Corpus Act of 1679 through Lincoln and Guantanamo, is in Habeas Corpus Is the Oldest Liberty in the Constitution, and War Tests It.

Clause 3, bills of attainder and ex post facto laws

No Bill of Attainder or ex post facto Law shall be passed.

Twelve words, two of the oldest protections in the Anglo-American tradition.

A bill of attainder is a legislative act that declares a named person or an identifiable group guilty and punishes them without a trial. Parliament used attainders for centuries to dispose of royal enemies, sometimes with death and forfeiture of all property. The ban means that only courts may decide guilt and impose punishment. Congress writes rules for everyone; it may not single out people for penalty.

The Supreme Court has enforced the ban against Congress itself. In United States v. Lovett (1946), it struck down a provision of an appropriations act that barred paying the salaries of three named federal employees whom a House committee had accused of subversive associations. The Court held that cutting off their pay by name, without a trial, was punishment by legislation. In United States v. Brown (1965), it struck down a law making it a crime for a member of the Communist Party to serve as an officer of a labor union, because the law singled out a defined group for punishment by legislative decree.

An ex post facto law punishes conduct after the fact. The leading case is Calder v. Bull, decided in 1798. The Connecticut legislature had set aside a probate court decree and ordered a new hearing, and the losing party argued that this was an ex post facto law. The justices, writing separately as was the custom, held that the ex post facto prohibitions apply only to criminal laws, not to civil matters like a dispute over a will.

Justice Samuel Chase's opinion set out four categories of ex post facto laws that the Court still uses:

1. A law that makes an action done before the law was passed, and innocent when done, criminal, and punishes it.
2. A law that aggravates a crime, making it greater than it was when committed.
3. A law that changes the punishment and inflicts a greater one than the law attached to the crime when committed.
4. A law that alters the rules of evidence to allow less or different testimony to convict than the law required at the time of the offense.

Chase also wrote, in a line that has echoed through natural law debates ever since, that an act of the legislature contrary to the great first principles of the social compact cannot be a rightful exercise of legislative authority, adding the aside "for I cannot call it a law." You do not have to accept every implication of that view to see the core point. A government that can change the rules after you have played the game is not governing by law at all.

Clause 4, the direct tax rule

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

A capitation is a head tax, the same charge on every person. "Direct" taxes, the founders generally understood, included head taxes and taxes on land. This clause requires such taxes to be apportioned among the states by population, so that a state with ten percent of the population pays ten percent of the tax. The census in Article I, Section 2, which the clause cross-references, was there in part to make apportionment possible; see Actual Enumeration, What the Census Clause Requires Every Ten Years.

Apportionment is clumsy on purpose. It makes direct taxes politically hard, which was the point. In Hylton v. United States (1796), the Court held that a federal tax on carriages was not a direct tax and need not be apportioned. In Pollock v. Farmers' Loan and Trust Co. (1895), it held that a federal tax on income from property was a direct tax, which effectively struck down the income tax of 1894. The Sixteenth Amendment, ratified in 1913, answered Pollock by allowing taxes on incomes "from whatever source derived, without apportionment among the several States." That is the story told in The 16th Amendment Began With a Promise That Only the Rich Would Pay.

Article V also protected this clause from amendment before 1808. It was part of the same sectional bargain as the first clause.

Clauses 5 and 6, exports and ports

No Tax or Duty shall be laid on Articles exported from any State.

No 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.

The export clause was demanded by the Southern states, whose economies depended on exporting tobacco, rice and indigo, and who feared that a Northern majority would tax their trade. It has been applied strictly. As recently as United States v. International Business Machines Corp. (1996), the Court struck down a federal tax on insurance premiums paid to insure goods for export, holding that the clause bars even generally applicable taxes that fall directly on exports.

The port preference clause carries the anti-favoritism theme. Under the Articles of Confederation, states had used their ports to tax their neighbors' trade. The new national government was forbidden to play the same game by favoring Baltimore over Philadelphia or Charleston over Savannah. Federal power was to be exercised evenhandedly among the states, a principle that later spending programs have done their best to forget.

Clause 7, the appropriations requirement

No 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.

This clause makes Congress the master of the purse. The executive cannot spend a dollar the law has not appropriated. The Court reaffirmed the rule in Office of Personnel Management v. Richmond (1990), holding that the government could not be made to pay benefits that the law did not authorize, even when a federal employee had given erroneous advice. Money comes out of the Treasury only by statute. Our full treatment is in No Money Shall Be Drawn but by Appropriation, Congress's Power of the Purse.

The second half of the clause is just as important and almost entirely forgotten. It requires that a regular statement and account of receipts and expenditures be published. The founders wrote transparency into the Constitution. Every citizen has a constitutional interest in knowing what the government takes in and pays out, which is why public debt figures like those on the national debt clock are not a courtesy but an obligation.

Clause 8, no titles of nobility

No 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.

The first half bans an American aristocracy. In a republic there are no lords, no dukes and no hereditary privileges. Even the title of the president was fought over in 1789, when the Senate toyed with grand forms of address and the House insisted on plain "Mr. President"; the comic history is in The Founders Fought About Titles, and His Highness Lost to Mr. President. Hamilton argued in Federalist 84 that the ban on titles might be called the cornerstone of republican government, because so long as titles are excluded there can never be serious danger that the government will be any other than that of the people.

The second half, the foreign emoluments clause, guards against foreign influence. No federal officer may accept a gift, payment, office or title from a foreign government without Congress's consent. The founders had watched European courts buy influence with diplomats through lavish presents, and they wanted American officials to owe their loyalty to one country only.

The objection, and the answer

The strongest objection to taking Section 9 seriously is that it is mostly obsolete. The slave trade clause expired in 1808. The direct tax clause was largely overtaken by the Sixteenth Amendment. Titles of nobility are a relic. Habeas corpus and ex post facto protections, the argument goes, are now covered more fully by the Fifth Amendment's due process clause and by modern criminal procedure. Why should a citizen in the twenty-first century care about an eighteenth-century list?

Here is the answer, point by point.

1. The live clauses are some of the most important protections we have. Habeas corpus, the ban on bills of attainder, the ban on ex post facto laws and the appropriations requirement are enforced by courts today. They are not covered by due process in the same way. Due process asks whether the procedure was fair. The attainder ban says the legislature may not punish at all.
2. The expired clauses teach. The slave trade clause shows both the moral cost of the founders' compromises and the way they built a deadline into it. Reading it honestly makes the Constitution more credible, not less.
3. The structure is the lesson. Section 9 shows that the founders did not trust any power, even a limited one. They granted, then they fenced. A citizen who understands Section 9 understands why a list of powers is not a promise that government will behave; it is a rule that can be enforced.
4. The transparency clause is a tool you can use today. The requirement to publish a regular account of public money is a constitutional basis for demanding clear federal budget reporting.

The case in brief

1. Article I, Section 9 is a list of prohibitions on Congress that protects individuals directly, written before the Bill of Rights and cited by Hamilton in Federalist 84 as proof the Constitution already secured liberty.
2. Its first clause shielded the slave trade only until 1808, and Congress banned the trade on January 1, 1808, the first day it could.
3. Its middle clauses forbid suspending habeas corpus except in rebellion or invasion, punishing by legislative decree, and punishing after the fact, under the four categories Justice Chase set out in Calder v. Bull (1798).
4. Its money clauses require apportioned direct taxes, forbid export taxes and port favoritism, and forbid any spending without a law, with a public account of every dollar.
5. Its last clause bans titles of nobility and foreign gifts without Congress's consent, guarding the republic against aristocracy and foreign influence.

What you can do: print Article I, Section 9 from our Constitution page, read its eight clauses with your family, and test yourself on the civics test.