Congress shall . . .

Exactly one amendment to the US Constitution begins with the phrase “Congress shall make no law . . “. Exactly one amendment begins with the phrase “Congress shall have the power . . .”.

But here the interesting symmetry ends. Although only the First begins with the precise phraseology, all of Madison’s amendments to the Constitution (including the curious XXVIIth, Madison’s first, but the last to be ratified) put explicit limits on the power of Congress. The XVIth, empowering Congress to levy an income tax, is rightly alone in its phrasing. Although numerous amendments grant new powers to Congress – starting with the XIIIth – none does so as expressly and widely as does the XVIth.

To draw the comparison with the first amendment that extended rather than limited the powers of Congress is instructive. The XIIIth, quite specifically, does not give Congress the power to abolish slavery. The XIIIth itself abolishes slavery, and grants Congress powers of interpretation and implementation only. This is no accident. If Congress had been granted a sweeping new power it could have exercised that by means of a simple majority in a quorate session, provided the President assented. Even in the face of a presidential veto Congress could have proceeded without any ratification by the states. The substantive act of the XIIIth was undertaken by the Article V procedure for amending the Constitution, and thus required a 2/3 majority in Congress and ratification by ¾ of the states.

The same is true of those other amendments which expand the scope of the federal government in general and Congress in particular. The express act is undertaken only under Article V with only powers of implementation granted to Congress, and limited to the express act of the amendment. Only the XVIth gives a sweeping new power to Congress to exercise at its discretion.

And what a sweeping power it is! Through this one amendment Congress exercises control of education – though the word is not mentioned in the XVIth, or anywhere else in the Constitution. Congress exercises this control by ensuring that states which disobey its mandates are forced to pay twice over for schooling – once through federal income tax and again through their own state taxes.

This is a matter I have studied very closely, as it is important to me that the gestative federal government that is the European Union does not grow beyond its enumerated powers in the way that the American federal government has. The XVIth is the key. Control over taxation is a lever by which the centre controls the states.

While in Europe we must resist direct control of taxes by Brussels, Americans would be wise to similarly disarm Washington.

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