Article I, Sections 9 and 10: Limits on Congress and the States

Most of the Constitution grants power. Sections 9 and 10 of Article I take power away. They are a list of "No" sentences: no suspending habeas corpus except in rebellion or invasion, no bills of attainder, no ex post facto laws, no unapportioned direct taxes, no taxes on exports, no titles of nobility. Section 10 then turns to the states and adds more: no coining money, no bills of credit, no laws impairing the obligation of contracts, no import duties without the consent of Congress, no compacts with other states without that consent.

Because these clauses forbid things, they invite lawsuits. A person who is taxed, jailed, punished or stripped of property has every reason to walk into court and say the government crossed a line. That is why several of these clauses were tested within a few years of ratification, long before most of the Bill of Rights was tested in any case. This lesson walks through each clause, names the earliest case we could verify, tells its story, and follows the rule to the present day.

Section 9, 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.

U.S. Constitution, Article I, Section 9, Clause 2 (National Archives transcription)

Ex parte Bollman (1807): the first great habeas case

The writ of habeas corpus is a court order telling a jailer to bring a prisoner forward and justify holding him. The earliest major Supreme Court habeas decision we found is Ex parte Bollman and Ex parte Swartwout, 8 U.S. (4 Cranch) 75 (1807). Erick Bollman and Samuel Swartwout had been committed in the District of Columbia on a charge of treason tied to Aaron Burr's alleged plans in the West. Chief Justice John Marshall, writing for the Court, held that the Judiciary Act gave the Supreme Court power to issue the writ to examine why a person was being held. Looking at the evidence, the Court found too little to hold either man for treason and ordered both discharged. Justice William Johnson dissented.

Bollman matters for two clauses at once. It is a habeas case, and it is also an early treason case (we return to it in Lesson 06). Marshall wrote that "The mere enlisting of men, without assembling them, is not levying war." The Constitution Annotated notes that a passage in Bollman, along with Justice Story's commentary, assumed that Congress holds the power to suspend the writ.

Ex parte Merryman (1861): the first test of suspension

The Clause says when the writ may be suspended, but not who may suspend it. That question came to a head in the opening weeks of the Civil War. Army officers arrested John Merryman in Maryland on suspicion of aiding secessionists and held him at Fort McHenry under Gen. George Cadwalader. Chief Justice Roger Taney, sitting as a circuit judge, issued a writ of habeas corpus. Cadwalader refused to produce Merryman. Taney's opinion, Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861), held that President Lincoln had no power to suspend the privilege of the writ. Taney ordered the opinion delivered to the President, according to the Federal Judicial Center, but no order forced Merryman's release.

Lincoln answered in his July 4, 1861 message to Congress, pointing to his duty to "take care that the laws be faithfully executed." Congress later authorized suspension in the Act of March 3, 1863, as the Constitution Annotated explains. Merryman is a circuit court ruling, not a Supreme Court decision, which is one reason the question of who may suspend the writ has never been fully settled by the high Court.

What came after: Boumediene v. Bush (2008)

The leading modern case is Boumediene v. Bush, 553 U.S. 723 (2008). Section 7 of the Military Commissions Act of 2006 had removed federal court habeas jurisdiction over detainees held as enemy combatants at Guantanamo Bay. Justice Anthony Kennedy, writing for a 5 to 4 majority, held that Section 7 operated as an unconstitutional suspension of the writ because the substitute review procedures were not adequate. Chief Justice Roberts and Justice Scalia each wrote dissents, joined by Justices Thomas and Alito.

Section 9, Clause 3, and Section 10: Bills of Attainder and Ex Post Facto Laws

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

U.S. Constitution, Article I, Section 9, Clause 3 (National Archives transcription)

Section 10 repeats both bans for the states. A bill of attainder is a law that punishes a named person or group without a trial. An ex post facto law, in the Court's reading, is a criminal law that reaches back in time.

Calder v. Bull (1798): the first ex post facto case

Cummings v. Missouri and Ex parte Garland (1867): the first attainder rulings

The bill of attainder bans sat quiet until the Civil War. After the war, Missouri's 1865 constitution required people in many professions, including clergy, to swear an oath that they had never done any of a long list of acts tied to the rebellion. Cummings, a Roman Catholic priest, preached without taking the oath. He was convicted, fined $500 and jailed until he paid.

In Cummings v. Missouri, 71 U.S. (4 Wall.) 277, decided January 14, 1867, the Court reversed by a 5 to 4 vote. Justice Stephen Field wrote that the disqualifications were punishment, and that the oath provisions were both a bill of attainder and an ex post facto law. Justice Samuel Miller dissented, joined by Chief Justice Salmon Chase and Justices Noah Swayne and David Davis.

In a companion case the Court decided Ex parte Garland, 71 U.S. (4 Wall.) 333, about a federal law. An act of January 24, 1865 required lawyers practicing in federal court to take a similar oath. Augustus Garland of Arkansas had served in the Confederate Congress but had received a full presidential pardon. Field, again writing for a 5 to 4 Court with the same dissenters, held that the federal act was a bill of pains and penalties and an ex post facto law. According to the Constitution Annotated, Cummings struck a state measure and Garland struck an act of Congress, which makes Garland the earliest case we found striking down a federal law on attainder grounds.

What came after: United States v. Lovett (1946)

Congress attached a rider to an appropriations bill that barred paying the salaries of three named federal employees, Robert Morss Lovett, William E. Dodd Jr. and Goodwin B. Watson, whom a House committee had labeled subversive. In United States v. Lovett, 328 U.S. 303 (1946), decided June 3, 1946, Justice Hugo Black wrote for the Court that the rider was a bill of attainder. Justice Felix Frankfurter, joined by Justice Stanley Reed, concurred. Justice Robert Jackson took no part. Later, United States v. Brown, 381 U.S. 437 (1965), struck down a law barring Communist Party members from serving as union officers, while Nixon v. Administrator of General Services, 433 U.S. 425 (1977), upheld a law aimed at one person (former President Nixon's records) because it was not punishment.

Section 9, Clause 4: Direct Taxes

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

U.S. Constitution, Article I, Section 9, Clause 4 (National Archives transcription)

Hylton v. United States (1796): the Court's first look at a federal tax

In 1794 Congress taxed carriages kept for private use. Hylton challenged it, arguing that a carriage tax was a "direct" tax and had to be divided among the states by population. In Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), decided March 8, 1796, the Court upheld the tax. The Constitution Annotated says the Court "first interpreted" the direct tax language in Hylton. Justices Chase, Paterson and Iredell each wrote opinions suggesting that direct taxes covered a narrow class, such as head taxes (capitations) and taxes on land. A carriage tax could not sensibly be apportioned, so it was not direct.

Hylton is also notable for Article III history. The Constitution Annotated's essay on the background of judicial review describes it as a case in which the constitutionality of a federal law was argued before the Justices and upheld on the merits, seven years before Marbury v. Madison.

What came after: Pollock (1895) and the Sixteenth Amendment

A century later, the narrow reading broke down. In Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), Chief Justice Melville Fuller held that a tax on income from real estate was a direct tax that had to be apportioned. On rehearing, in 158 U.S. 601 (1895), decided May 20, 1895, the Court went further and struck down the income tax provisions of the 1894 act as a whole, over dissents including Justice John Marshall Harlan's. The Sixteenth Amendment (1913) was the answer; we cover it in Lesson 12.

Section 9, Clause 5: The Export Clause

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

U.S. Constitution, Article I, Section 9, Clause 5 (National Archives transcription)

The Export Clause protected Southern states that feared Congress would tax their crops. The earliest Supreme Court case the Constitution Annotated discusses is Pace v. Burgess, 92 U.S. 372 (1876), which held that a stamp on tobacco meant for export was not a tax on exports but a fee for identifying the goods. The earliest case we found striking down a federal tax under the clause is Fairbank v. United States, 181 U.S. 283 (1901), which voided a stamp tax on foreign bills of lading as, in effect, a tax on exports. The modern cases follow the same line: United States v. IBM, 517 U.S. 843 (1996), struck down a tax on insurance premiums for exported goods, and United States v. United States Shoe Corp., 523 U.S. 360 (1998), struck down a tax measured by the value of cargo loaded at American ports for export.

Section 9, Clause 7: The Appropriations Clause

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law

U.S. Constitution, Article I, Section 9, Clause 7 (National Archives transcription, excerpt)

The power of the purse is mostly fought out between Congress and the President, not in court. A recent leading case is Consumer Financial Protection Bureau v. Community Financial Services Association of America, No. 22-448 (2024), decided May 16, 2024. The Bureau draws its money from the Federal Reserve rather than from yearly appropriations. Justice Clarence Thomas, writing for a 7 to 2 Court, held that this satisfies the Clause, because an appropriation need only identify a source of public funds and authorize spending for designated purposes. Justice Samuel Alito, joined by Justice Neil Gorsuch, dissented. We did not confirm an earliest Supreme Court case on this clause, so we leave that question open.

Section 9, Clause 8: Titles of Nobility and Foreign Emoluments

No Title of Nobility shall be granted by the United States

U.S. Constitution, Article I, Section 9, Clause 8 (National Archives transcription, excerpt)

This is a clause with no landmark first case. The Constitution Annotated says courts have rarely interpreted it. The Supreme Court has mentioned it mostly in passing, in concurrences and dissents. A handful of lower courts have applied it: the Ninth Circuit held in 1971 that military rank is not a title of nobility (United States v. Thomason, 444 F.2d 1094), a New York civil court in 1966 relied on its "spirit and intent" to refuse a name change to "von Jama," and several courts have rejected claims that lawyers using "Esquire" violate it. Section 10 has a parallel ban for the states. The Foreign Emoluments Clause in the same sentence drew lawsuits during President Trump's first term, but we did not confirm a Supreme Court merits ruling on it, so we leave those cases out.

Section 10, Clause 1: The Contract Clause

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

U.S. Constitution, Article I, Section 10, Clause 1 (National Archives transcription, excerpt)

Fletcher v. Peck (1810): the Yazoo land scandal

In 1795 the Georgia legislature sold a huge tract of western land, the Yazoo lands, to private companies, amid widespread charges that legislators had been bribed. Voters threw many of them out, and in 1796 a new legislature repealed the sale and voided the grants. By then some of the land had changed hands. John Peck sold land to Robert Fletcher in 1803, and Fletcher sued Peck, claiming the title was bad because of the repeal.

In Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), decided March 16, 1810, the Court held that a grant is a contract, and that Georgia's repeal impaired the obligation of that contract. The syllabus states: "A law annulling conveyances is unconstitutional because it is a law impairing the obligation of contracts." Chief Justice Marshall wrote the opinion, according to the Supreme Court Historical Society. Justice William Johnson wrote a separate opinion that agreed Georgia could not revoke its grant, on grounds other than the Contract Clause, and dissented on another point. The Court also declined to look into the legislators' motives. The Constitution Annotated describes Fletcher as one of the first cases in which the Court struck down a state law as unconstitutional. (In Ware v. Hylton in 1796 the Court had already held that a Virginia law gave way to a treaty, which is a Supremacy Clause question we cover in Lesson 07.)

Dartmouth College v. Woodward (1819): charters are contracts

In 1816 New Hampshire changed Dartmouth College's 1769 royal charter to put the college under state control. The old trustees sued. Daniel Webster, a Dartmouth graduate, argued for them, and Dartmouth's own history page records his line: "It is, sir, as I have said, a small college, and yet there are those who love it!" In Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819), Chief Justice Marshall held that the charter was a contract, that Dartmouth was a private corporation, and that the state law impaired the charter's obligation. Justices Story and Washington wrote separately, and Justice Gabriel Duvall dissented without opinion, according to the Free Speech Center at Middle Tennessee State University.

What came after: Home Building & Loan v. Blaisdell (1934)

In the Great Depression, Minnesota let courts extend the time for homeowners to redeem foreclosed property. A lender said that impaired its mortgage contract. In Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934), decided January 8, 1934, Chief Justice Charles Evans Hughes wrote for a 5 to 4 Court that a real emergency justified temporary, conditional relief under the state's police power. Justice George Sutherland dissented, joined by Justices Van Devanter, McReynolds and Butler. Blaisdell is the starting point for modern Contract Clause cases, which ask whether a law substantially impairs a contract and, if so, whether it is a reasonable way to serve a legitimate public purpose.

Section 10, Clause 1: Money and Bills of Credit

States may not "coin Money" or "emit Bills of Credit." In 1821 Missouri set up loan offices that issued small certificates the state accepted for taxes and lent to citizens. Hiram Craig and others signed a note to the state for certificates. When Missouri sued, they argued the certificates were illegal bills of credit. In Craig v. Missouri, 29 U.S. (4 Pet.) 410 (1830), Chief Justice Marshall agreed, holding the certificates were bills of credit and the note was void. Justices Thompson, Johnson and McLean dissented. This is the earliest Supreme Court case on the clause that we found.

Section 10, Clause 2: The Import-Export Clause

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 it's inspection Laws

U.S. Constitution, Article I, Section 10, Clause 2 (National Archives transcription, excerpt; spelling as in original)

Brown v. Maryland (1827): the "original package"

Maryland required importers of foreign goods to buy a $50 license before selling by the bale or package. Alexander Brown and Sons, Baltimore merchants, sold a package of imported dry goods without one and were indicted. In Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827), Chief Justice Marshall held the law unconstitutional under both the Import-Export Clause and the Commerce Clause. Goods still in the importer's hands, in their original form or package, could not be taxed by the state; once mixed into the general property of the state, they could. Justice Smith Thompson dissented. The "original package" idea governed for generations before later cases replaced it.

Section 10, Clause 3: Interstate Compacts

States may not "enter into any Agreement or Compact with another State" without the consent of Congress. In 1789 Virginia and Kentucky agreed, as Kentucky became a state, that land rights granted under Virginia law would stay secure. Kentucky later passed "occupying claimant" laws that favored settlers over title holders. In Green v. Biddle, 21 U.S. (8 Wheat.) 1 (1823), the Court held that the compact was a valid agreement protected by the Contract Clause, and the Kentucky laws were unconstitutional. Justice Story delivered the Court's first opinion in 1821; after a rehearing, Justice Bushrod Washington delivered the opinion of February 1823, and Justice Johnson wrote separately. It is the earliest Supreme Court case we found enforcing an interstate compact. The leading test for when consent is needed comes from Virginia v. Tennessee, 148 U.S. 503 (1893), which the Constitution Annotated cites for the view that only compacts that increase state political power at the expense of federal supremacy need consent.

Summary table

Clause	First case	Year	What kind of first
Habeas corpus (I.9.2)	Ex parte Bollman	1807	Earliest major Supreme Court habeas case we found
Suspension of habeas	Ex parte Merryman	1861	First judicial test of a presidential suspension (circuit court)
Suspension Clause enforced	Boumediene v. Bush	2008	Act of Congress held an unconstitutional suspension
Ex post facto (I.9.3, I.10.1)	Calder v. Bull	1798	First Supreme Court interpretation
Bill of attainder, state	Cummings v. Missouri	1867	Earliest state law struck we found
Bill of attainder, federal	Ex parte Garland	1867	Earliest federal law struck we found
Direct taxes (I.9.4)	Hylton v. United States	1796	First interpretation (Constitution Annotated)
Export Clause (I.9.5)	Pace v. Burgess; Fairbank v. United States	1876; 1901	Earliest discussed; earliest federal tax struck we found
Appropriations (I.9.7)	CFPB v. Community Financial Services	2024	Leading modern case (earliest not confirmed)
Title of nobility (I.9.8)	No Supreme Court ruling	n/a	Lower courts only
Contract Clause (I.10.1)	Fletcher v. Peck	1810	One of the first state laws struck down
Bills of credit (I.10.1)	Craig v. Missouri	1830	Earliest case we found
Import-Export (I.10.2)	Brown v. Maryland	1827	Earliest major case; state tax struck
Compacts (I.10.3)	Green v. Biddle	1823	Earliest compact enforced that we found