Tornado Alley (PROG)

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Da Kine 17, This may help - Article I, Section 10

by Richard A. Epstein

James Parker Hall Distinguished Service Professor Emeritus of Law and Senior Lecturer at the University of Chicago Law School

by Jack Rakove

William Robertson Coe Professor of History and American Studies; Professor of Political Science and, by courtesy, Law at Stanford University

Article I, Section 10 contains a long, somewhat diverse list of prohibitions on the power of the states to engage in certain activities. Understanding its significance depends on first placing it within the larger framework of Article I, which is primarily devoted to setting out the structure of Congress and then enumerating its legislative powers. Those activities occupy Sections 1 through 8. Section 9 prohibits a broad array of activities by the federal government, which run the gamut from weakening the privilege of the writ of habeas corpus to taxing exports from the states.

Section 10 imposes a similar list of prohibitions on the powers of the states. Clause 1 contains absolute prohibitions that Congress cannot waive. Clauses 2 and 3 impose prohibitions that Congress can waive—presumably by legislation, although the text does not make clear whether any joint resolution is subject to a presidential veto. It is difficult to explain why the prohibitions found in Clause 1 cannot be waived by Congress while those in the last two clauses can be. But in both cases, the state interests are made subordinate to those of the national government.

These prohibitions in Section 10 can be divided into several subclasses. One group imposes on the states some of the restrictions that Section 9 imposed on Congress: the power to pass bills of attainder or ex post facto laws, or to grant titles of nobility. A second category guarantees that matters of war and diplomacy belong primarily or exclusively to the national government. The states are prohibited from forming compacts with foreign nations or even with each other without the assent of Congress.

A third category applies to financial matters, dealing with such issues as the power to coin money, emit bills of credit, or lay duties on imports and exports. During the Revolutionary War, both the Continental Congress and the states resorted to the massive issuance of various instruments of credit, unsecured by adequate taxation. The resulting depreciation in the value of these instruments, coupled with the corresponding inflation of prices, created a strong consensus to empower Congress to secure the public credit of the United States by levying its own taxes and limiting, though hardly eliminating, the financial powers of the states. Under the Articles of Confederation, both the Continental Congress and the states had the authority to coin money, but only Congress could fix its “alloy and value.” The evident intention is to give that power exclusively to Congress under Article I, Section 8, Clause 5.

Section 10, Clause 1 contains a general prohibition against states emitting letters of credit, unless, as it came to be understood, they were drawn on some specific fund set aside for that purpose. The result reads like a compromise designed to prevent the open-ended use of state credit without shutting down the capacity of the states to borrow at all. These provisions, together with the requirement that only gold and silver could be used for legal tender, stem from the desire to insulate other states in the union from the fiscal shocks created by any single state.

https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/767