---
title: U.S. Const. Art. I, Sec. 9. Powers Denied Congress
collection: code
id: us-const:art-i-sec-9
cite_as: U.S. Const. Art. I, Sec. 9
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---

# U.S. Const. Art. I, Sec. 9. Powers Denied Congress

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

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.

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.

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

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

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.

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.

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.

## Cross References

State guarantee of writ of habeas corpus, Ga. Const. 1983, Art. I, Sec. I, Para. XV and § 9-14-1 et seq.

## Editor's Notes

U.S. Const., art. I, sec. IX, cl. 1 referred to slave trade and was rendered obsolete by U.S. Const., amend. 13. U.S. Const., art. I, sec. IX, cl. 4 has been modified by U.S. Const., amend. 16.

## Law Reviews

For comment on Winston v. State, 186 Ga. 573, 198 S.E. 667 (1938), see 1 Ga. B.J. 46 (1939).

For article, “Georgia Water Law: Use and Control Factors,” see 19 Ga. B.J. 119 (1956).

For article, “The Law of the Land,” focusing on the role of the Supreme Court, see 6 J. of Pub. L. 444 (1957).

For article, “The Legal Status of the American Communist Party: 1965,” see 15 J. of Pub. L. 94 (1966).

For comment discussing Rowe v. Peyton, 383 F.2d 709 (4th Cir. 1967), as to the availability of habeas corpus to test the validity of a sentence to commence in futuro, see 2 Ga. L. Rev. 116 (1967).

For article discussing Georgia’s habeas corpus statutes in light of federal courts’ requirements of exhaustion of state remedies prior to entertaining a habeas petition, see 9 Ga. St. B.J. 29 (1972).

For note, “In Search of the Optimum Writ: A Suggestion for the Improvement of Federal Habeas Corpus,” see 22 J. of Pub. L. 465 (1973).

For comment on Todd v. State, 228 Ga. 746, 187 S.E.2d 831 (1972), see 24 Mercer L. Rev. 491 (1973).

For article, “Power, Idealism, and Compromise: The Coordinate Branches and the Writ of Habeas Corpus,” see 26 Emory L.J. 149 (1977).

For comment discussing interpretation of ex post facto clause, see 28 Emory L.J. 429 (1979).

For article, “Problems in Search of Principles: The First Amendment in the Supreme Court from 1791-1930,” see 35 Emory L.J. 59 (1986).

For article, “Congress: The Purse, the Purpose, and the Power,” 21 Ga. L. Rev. 1 (1986).

For lecture, “Government, Society, and Anarchy,” see 38 Mercer L. Rev. 753 (1987).

For survey of Eleventh Circuit cases on evidence, see 39 Mercer L. Rev. 1259 (1988).

For article, “Ideology, Religion, and the Constitutional Protection of Private Property: 1760-1860,” see 39 Emory L.J. 65 (1990).

For article, “Federal and State ‘State Action’: The Undercritical Embrace of a Hypercriticized Doctrine,” see 24 Ga. L. Rev. 327 (1990).

For annual Eleventh Circuit survey of constitutional law — civil, see 43 Mercer L. Rev. 1075 (1992).

For article, “Slavery and Race: New Ideas and Enduring Shibboleths in the Interpretation of the American Constitutional System,” see 44 Mercer L. Rev. 637 (1993).

For comment on revival prosecutions and the ex post facto clauses, see 50 Emory L.J. 397 (2001).

Garner v. Jones: Restricting prisoners’ ex post facto challenges to changes in parole systems, see 52 Mercer L. Rev. 761 (2001).

For note, “Uncertain Waters: Tennard v. Dretke Provides Swells of Protection for the Mentally Deficient But May Cause Rising Tides of Frivolous Claims,” see 56 Mercer L. Rev. 1483 (2005).

For article, “Wealth Inequality and Family Businesses,” see 65 Emory L.J. 937 (2016).

For note, “Bailing on Bail: The Unconstitutionality of Fixed, Monetary Bail Systems and Their Continued Use Throughout the United States,” see 52 Ga. L. Rev. 985 (2018).

For article, “From a Mint on a Hotel Pillow to an Emolument,” see 70 Mercer L. Rev. 705 (2019).

For note, “(I Can’t Get No) Habeas Relief, Cause I Try, and I Try, and I Try, and I Try,” see 70 Mercer L. Rev. 1135 (2019).

For article, “Foreword: Lawyers and Linguists Collaborate in Using Corpus Linguistics to Produce New Insights Into Original Meaning,” see 36 Ga. St. U.L. Rev. vi (2020).

For article, “Using Empirical Data to Investigate the Original Meaning of ‘Emolument’ in the Constitution,” see 36 Ga. St. U.L. Rev. 465 (2020).

## Bill of Attainder.

Federal statutory incentive for physicians to become “participating” Medicare physicians (providing Medicare enrollees with lists of the specialties and phone numbers of participating physicians, more efficient processing of claims and the recognition of increased billing charges to non-Medicare patients in future calculations of participating physicians’ “customary” charges) and a statutory enforcement mechanism (civil fines for raising fees and/or barring nonparticipating physicians from treating Medicare patients for a period up to five years) did not constitute a bill of attainder. Whitney v. Heckler, 780 F.2d 963, 1986 U.S. App. LEXIS 21846 (11th Cir.), cert. denied, 479 U.S. 813, 107 S. Ct. 65, 93 L. Ed. 2d 23, 1986 U.S. LEXIS 3338 (1986).

## Discovery.

The amended discovery procedure of O.C.G.A. § 17-16-1 et seq. is not a bill of attainder, which refers to legislative imposition of punishment on specific persons or on class of persons without any judicial proceeding. Stinski v. State, 281 Ga. 783, 642 S.E.2d 1, 2007 Ga. LEXIS 128 (2007).

Removal of county commissioner

## From Office.

Local act, which had the effect of removing a county commissioner from office before the end of the two-year term to which she had been appointed to fill a vacancy left by a deceased commissioner, was a bill of attainder prohibited by both the Georgia and United States Constitutions. Fulton v. Baker, 261 Ga. 710, 410 S.E.2d 735, 1991 Ga. LEXIS 1008 (1991).

Local deannexation statute that included the area of the city in which the mayor resided, making the mayor ineligible to hold office, was not an unconstitutional bill of attainder because it neither singled out the mayor nor punished the mayor as an officeholder. Lee v. City of Villa Rica, 264 Ga. 606, 449 S.E.2d 295, 1994 Ga. LEXIS 871 (1994).

## Federal Statute on Firearm Possession Constitutional.

Federal statute prohibiting anyone convicted of a domestic violence misdemeanor from possessing or receiving a firearm did not impose punishment in violation of the bill of attainder clause. National Ass’n of Gov’t Employees v. Barrett, 968 F. Supp. 1564, 1997 U.S. Dist. LEXIS 9407 (N.D. Ga. 1997), aff’d sub nom. Hiley v. Barrett, 155 F.3d 1276, 1998 U.S. App. LEXIS 23253 (11th Cir. 1998).

Habeas Corpus

## Nature of Writ of Habeas Corpus.

The great writ of habeas corpus has not been, and could not be, suspended by Congress in the absence of a rebellion or invasion. The great writ is of such antiquity that its origin is unknown, but from its inception as a writ designed to put people in jail rather than to get them out its status has been far from static. It is not subject to argument that the great writ cannot be suspended in times of peace, but the proposition is also undebatable that it Habeas Corpus (Cont’d) ought not to be abused in times of war or peace. The right to the writ has never been absolute. The statute from 1789 until the present has required that for the writ to issue it must be “agreeable to the principles and usages of law.” The petition must be in writing and under oath. Martin v. Hiatt, 174 F.2d 350, 1949 U.S. App. LEXIS 2206 (5th Cir. 1949).

Prisoner’s right to attack detainer

## Or Sentence Not Yet Served.

Prisoners in custody under one sentence may attack a sentence which they have not yet begun to serve. A petitioner held in one state may attack a detainer lodged against him by another state. A petitioner can bring his action attacking his sentence in the court that imposed the sentence. Callahan v. State, 235 Ga. 359, 219 S.E.2d 717, 1975 Ga. LEXIS 880 (1975).

Appointment of counsel for habeas

## Corpus Petitioner.

Since habeas corpus is not a criminal proceeding, neither the U.S. Const., amend. 6 nor the Georgia Constitution requires the appointment of counsel for a habeas corpus petitioner. Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, 1979 Ga. LEXIS 980, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979).

Defendant has no right to receive or spend state funds for appointment of experts or investigators in habeas corpus proceedings, including death penalty cases. Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1, 1979 Ga. LEXIS 980, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979).

Appropriate remedy for cruel and

## Unusual Punishment.

Assuming arguendo that prisoner’s allegations of mistreatment demonstrate cruel and unusual punishment, he still would not be entitled to release from prison, the appropriate remedy being to enjoin continuance of any practices or to require correction of any conditions causing him cruel and unusual punishment. Cook v. Hanberry, 596 F.2d 658, 1979 U.S. App. LEXIS 14211 (5th Cir.), cert. denied, 442 U.S. 932, 99 S. Ct. 2866, 61 L. Ed. 2d 301, 1979 U.S. LEXIS 2105 (1979).

Error that deprives defendant of constitutional right, unless waived according to law, may be raised on application for habeas corpus. Rachel v. State, 247 Ga. 130, 274 S.E.2d 475, 1981 Ga. LEXIS 638 (1981). holding” doctrine obtains on a second habeas corpus petition only if petitioner has not previously presented the ground for relief in a federal habeas corpus proceeding. Fleming v. Kemp, 794 F.2d 1478, 1986 U.S. App. LEXIS 27500 (11th Cir. 1986).

## “Intentional Abandonment or with-Procedural Limitations.

The procedural limitations of O.C.G.A. § 40-13-33(a) and (b) neither suspend the writ of habeas corpus, nor cause a court to dismiss an action for habeas without consideration of the equities presented. Rather, the statute provides that in a narrowly defined class of cases — those in which a petitioner who is not in custody seeks habeas relief from a misdemeanor traffic conviction — the petition for habeas corpus must be filed within 180 days of conviction. As such, it imposes a permissible procedural restriction on a limited group of cases. Earp v. Boylan, 260 Ga. 112, 390 S.E.2d 577, 1990 Ga. LEXIS 159 (1990).

The federal Antiterrorism and Effective Death Penalty Act of 1996, which, inter alia, requires a habeas petitioner to obtain leave from the appellate court before filing a second habeas petition in the district court, constitutes a restraint on abuse of the habeas writ and does not “suspend” the writ in violation of clause 2 of this section. Felker v. Turpin, 518 U.S. 651, 116 S. Ct. 2333, 135 L. Ed. 2d 827, 1996 U.S. LEXIS 4264 (1996).

Ex Post Facto Laws

1. In General

An ex post facto law is a retrospective criminal or penal measure that is disadvantageous to the offender because it may impose greater punishment. United States v. Reed, 924 F.2d 1014, 1991 U.S. App. LEXIS 2898 (11th Cir. 1991).

Law that is merely procedural and does not add to the quantum of punishment cannot violate the ex post facto clause even if it is applied retrospectively. United States v. Reed, 924 F.2d 1014, 1991 U.S. App. LEXIS 2898 (11th Cir. 1991).

Ex post facto laws prohibited by state and federal Constitutions refer only to laws which aggravate the crime, increase the punishment, or allow conviction on a lesser or different weight of evidence, and not to those which reduce or mollify the penalty. Barton v. State, 81 Ga. App. 810, 60 S.E.2d 173, 1950 Ga. App. LEXIS 1004 (1950).

Even though a statute, passed after a conviction, uses the conviction as an element of a future offense, this is not an ex post facto law, because the defendant’s punishment for the earlier conviction is not increased, since the statute punishes only for a future offense, and that punishment is rationally enhanced by the prior conviction. State v. Dean, 235 Ga. App. 847, 510 S.E.2d 605, 1998 Ga. App. LEXIS 1621 (1998).

2. Civil


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