Article I, Sections 9–10: What Congress and the states may not do

Sections 9 and 10 are the original Constitution's list of things government may not do. Section 9 limits Congress. Section 10 limits the states, which means it limits California and every city in it, including Williams. Before the Bill of Rights existed, these were the only individual protections in the document.

Section 9: Limits on Congress

[Clause 1] 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.

[Clause 2] 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.

[Clause 3] No Bill of Attainder or ex post facto Law shall be passed.

[Clause 4] No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

[Clause 5] No Tax or Duty shall be laid on Articles exported from any State.

[Clause 6] 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.

[Clause 7] 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.

[Clause 8] 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.

Source: National Archives transcription Verified1

Changed. Clause 4: Changed. The Archives notes that Article I, Section 9 "was modified by amendment 16," which lets Congress tax incomes "without apportionment among the several States." Verified1,2

Clause by clause

• Clause 1, the slave trade. Congress couldn't ban importing enslaved people before 1808. It's a compromise with slavery written into the text, expired by its own terms.
• 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." A writ of habeas corpus orders a jailer to bring a prisoner before a judge and justify the detention. It's the oldest protection against being held without legal cause.
• Clause 3, no bills of attainder or ex post facto laws by Congress.
• Clause 4, direct taxes. Direct taxes had to be divided among states by population. In 1895 the Court held a federal income tax on income from property was a direct tax that hadn't been apportioned, and struck it down (Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895)) Verified3. The Sixteenth Amendment answered that case Verified2.
• Clause 5, no export taxes.
• Clause 6, no port preferences. Congress can't favor one state's ports.
• Clause 7, the Appropriations Clause. "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law," with a regular public statement of receipts and spending. This is Congress's power of the purse.
• Clause 8, no titles of nobility, and no federal official may accept a gift, payment, office or title from a foreign state without Congress's consent (the foreign Emoluments Clause).

Bills of attainder and ex post facto laws

Ex post facto. The basic rule comes from Calder v. Bull (1798). Justice Chase listed the laws the clause forbids, starting with "Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action," and "Every law that aggravates a crime, or makes it greater than it was, when committed" (Calder v. Bull, 3 U.S. 386 (1798)) Verified4. The Court also held the clause covers only criminal punishment, not civil laws that happen to be retroactive. Chase said he did not think it "was inserted to secure the citizen in his private rights, of either property, or contracts" Verified4.

Bill of attainder. A legislature acting as judge: a law that singles out a person or an identifiable group and punishes them without a trial.

Section 10: Limits on the states (and so on cities)

[Clause 1] No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

[Clause 2] 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: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

[Clause 3] No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Source: National Archives transcription Verified1

Clause 1: The absolute prohibitions

No state may make treaties, coin money, issue paper money ("Bills of Credit"), make anything but gold and silver legal tender for debts, pass a bill of attainder or ex post facto law, pass any law "impairing the Obligation of Contracts," or grant titles of nobility.

The Contracts Clause. This was the most-litigated clause of the 1800s.

• Charters are contracts. New Hampshire tried to take over Dartmouth College by rewriting its royal charter. The Court held the charter was a contract the state couldn't impair. Marshall wrote that to rescind such a contract "and seize on the property, is not law, but violence" (Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819)) Verified5.
• But emergencies and the police power count. During the Depression, Minnesota delayed mortgage foreclosures. The Court upheld it: the state keeps a "reserved power" to protect the public, and contracts are made subject to it (Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934)) Verified6.

Our reading of the modern test: a law that substantially impairs an existing contract must be a reasonable way to serve a significant public purpose. Courts are more skeptical when the government changes its own contracts to save itself money.

Clause 2: Import and export duties

States can't tax imports or exports without Congress's consent, except what's "absolutely necessary" for inspection laws, and any net proceeds go to the federal Treasury.

Clause 3: Compacts and war

Without Congress's consent, states can't tax ships by tonnage, keep troops or warships in peacetime, make agreements with other states or foreign countries, or go to war unless invaded or in imminent danger.

How it reaches Williams

Section 10 binds the states directly, and a city's ordinances are state action, so its limits apply to Williams without any incorporation Verified1. California's own constitution repeats the core of it: "A bill of attainder, ex post facto law, or law impairing the obligation of contracts may not be passed" (Cal. Const., Art. I, §9) Verified7.

In Williams

• No retroactive penalties. If the council raises the penalty for a code violation, the higher penalty can't be applied to a violation that happened before the change, to the extent the penalty is criminal (misdemeanors and infractions under the city code) Verified4,7. Civil fees and administrative charges are analyzed differently.
• No ordinance aimed at one person. An ordinance that names a specific resident or business and imposes a penalty without any hearing would raise the bill-of-attainder question. Our reading: general rules applied through a hearing are the safe path; targeted legislative punishment is not.
• City contracts. The Contracts Clause protects people who contract with the city. When a state or city changes its own financial obligations, the Court has said "an impairment may be constitutional if it is reasonable and necessary to serve an important public purpose," and it reviews such changes more skeptically because the government is protecting its own budget (United States Trust Co. of New York v. New Jersey, 431 U.S. 1 (1977)) Verified8. Blaisdell is the root of the reserved-power idea Verified6.

Common misconceptions

• "Ex post facto means any retroactive law." Since Calder v. Bull, it means retroactive criminal laws Verified4. Retroactive civil laws are tested under due process.
• "Habeas corpus is a Bill of Rights right." It's in Article I, in the original Constitution.
• "The Contracts Clause makes every contract untouchable." Blaisdell holds contracts are subject to the state's reserved police power Verified6.
• "These limits apply only to states, not cities." A city acts with state power, so Section 10 reaches it.

Check yourself

Pick an answer for each question. You will see right away if it is right, and why.