The American legislative function is divided into two different chambers – the House of Representatives and the Senate. Congress is the legislative body that holds the power to draft and pass legislation, borrow money, declare war and raise a military, and perform the basic tasks of government. It also has the power to check and balance the other two federal branches through the use of specific powers granted under Article 1. Today, there are 435 Representatives apportioned by population and 100 Senators, two for each state.

The legislative branch is first described in the Constitution, for it is in the legislative branch that the sovereignty of the people and their control over the course and direction of their government is primarily vested. At the time, this was an innovation and decided break with the medieval developments of European thought and practice—as well as a break with the practice of nearly all governments in human history. Historically, with rare exceptions in Greece and Rome, the king or emperor was primary and the executive function primary. The legislative function was normally a conciliar body to represent the views of the nation and its “estates” to the ruler. In the new nation, the founders conceived all power would ultimately rest with the people and their representatives. This development constituted a profound change in human history.

Structure of the Legislative Branch

Article 1 begins: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” In this sentence, there are two basic principles announced: The power to make laws belongs to Congress, the legislative body created under the Constitution. This means that the executive and judicial departments are not to make laws but instead to administer and interpret them. [1] From time immemorial kings made laws and issued decrees. This provision was intended to create a barrier against the executive branch making laws without the consent of the representatives of the people. Another implication is the notion that that the bureaucratic function found in every executive should not make laws, but instead carry out laws made by the Congress. [2]

Secondly, the division of the executive function between the House of Representatives and the Senate was intended to create an internal check upon the legislative function that would make it more difficult for factions to dominate the legislature and promote some kind of mob rule of the majority. Here we see the principle of checks and balances within a particular branch of the government to prevent legislative excess. The idea was to prevent a “faction” or “mob” from gaining power, as happened in France during the French Revolution. [3]

The Senate and House are complimentary bodies, one deliberately populist the other initially reserved to the states to maintain the federalist balance. This is an example of how the Constitution has changed and been modified to adapt to cultural changes. Initially, the Senate was chosen by State Legislatures. This provision was intended to ensure that the States, as sovereigns states, were represented in the counsels of the national government. It was also thought that the states, being represented in the national congress would not fear but support the national government. However, this system did not necessarily work as planned, and the division over slavery was one of the impediments to its operation. During the mid-19^th Century, as the Republican Party gained power in the Northern States and the anti-slavery movement gained force, it was sometimes impossible for divided legislatures to act responsibly and elect Senators, resulting in vacancies.

After the Civil War, legislatures were sometimes corrupted and Senate seats bought, resulting in bribery allegations. Eventually the Seventeenth Amendment was adopted (1913), providing for the direct election of senators, replacing the phrase “chosen by the Legislature thereof” with “elected by the people thereof.” In addition, the amendment permits the governor or executive authority of each state, if authorized by that state’s legislature, to appoint a senator in the event of a vacancy, until a general election occurs.

Hamilton’s Basic Principle

In defending the constitution against those who wished to continue the Articles of Confederation in a modified form, Hamilton set out a basic principle which he felt ought to guide the debate over adoption of the Constitution and the powers given to the new government: The new government ought to have the powers necessary to conduct the public business entrusted to it without the flaws of the Articles of Confederation. This meant the power of direct taxation and the ability to enforce its laws, both lacking under the Articles of Confederation. Thus, he writes:

A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible., free from every other control but a regard for the public good and the sense of the people. [4]

These principles have positive and negative implications. As Hamilton intended, the people must grant to the legislature and national government the power to accomplish things that are felt in the public good—and care might need to be taken as to how much the people expect the federal government to accomplish. It is to be noted that it is a characteristic of Hamilton’s thought to restrain the exercise of power to the accomplishment of the public good and by common morality.

Taxation and the Federal Budget

The primary defect of the Articles of Confederation was that, while the national government had responsibility for matters like national defense, it had no independent, direct power to raise the funds necessary to accomplish this and other tasks. As a result, the government was chronically under-funded and unable to pay the substantial debts incurred in the revolutionary war. In order to remedy this situation, the first enumerated power in Article 8 reads as follows:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;….

Immediately thereafter the Congress is granted the power to borrow money on the credit of the United States.

Perhaps unfortunately, the founders never considered the possibility that the Congress would one day be able to use the power to borrow to fund numerous programs without much hope that the debt could be repaid. The days of fiat money and the status of the U.S. Dollar as the world’s primary currency of trade were far in the future, and the results could not be foreseen. Today, the problem with the legislative power is not an inability to raise funds, but the inability to exercise fiscal discipline. Numerous attempts have been made to remedy the situation through various forms of balanced budget amendments, but to date they have been unsuccessful.

Regulation of Commerce

The second power, vastly expanded in the 20^th century, is the ability to regulate commerce with foreign nations, among the states, and with the Indian tribes. This power was needed in response to the danger of states having different import and export policies to the detriment of the prosperity and peace of the nation as a whole and the propensity of the states to engage in a kind of economic warfare with each other. Subsequent to the Civil War, as the economy became increasingly industrial and national in scope, this power was greatly expanded, especially in response to the Great Depression. Today, there are very few areas of commerce that Congress cannot regulate.

National Defense

The Constitution gives Congress a variety of powers to provide for the defense of the nation. Congress may declare war, grant letters of marque and reprisal, make rules related to the capture of persons and property, raise armies, maintain a navy, make rules governing land and naval forces, provide for calling up militia to execute laws and suppress rebellion and invasion, provide for organizing, arming and disciplining militia and for governing such part of the militia of the states as are serving the United States, and erect forts, magazines, arsenals, dockyards and other structures necessary for the defense of the nation.

Consistent with the principle that Congress must have the tools to accomplish the tasks committed to the national government, Congress may tax and borrow to defend the nation. The only limitation on these powers restricts appropriations to a term of no more than two years.

Judiciary

A grave defect of the Articles of Confederation was the lack of a federal court system empowered to enforce federal law. It is of no use for Congress to adopt laws unless there exists a means by which these laws can be enforced. Article 3 of the Constitution established a Supreme Court, but Congress was given several powers related to the court system: the power to constitute tribunals inferior to the Supreme Court, to define and publish piracies and felonies on the high seas, and offenses against the law of nations (in other words to provide for admiralty laws and enforce international law), and to establish naturalization laws and uniform bankruptcy laws. Thus, unlike the Articles of Confederation, Congress could create a judicial branch with the power to enforce national laws.

Shared Sovereignty

It may be recalled that the states were not necessarily in favor of the creation of a national government that would limit their sovereignty. The framers responded to this reality by creating a system of shared sovereignty. In other words, there were areas in which the national government was sovereign and those in which the states were sovereign. At the time, the greater threat was that the states would interfere with the new national government, so there was added a specific section, Section 10 of the Constitution, that prohibits actions by the states that would interfere with the federal government in the exercise of its functions.

States are prohibited from carrying out their own foreign policy and entering into treaties, alliances, or confederations with foreign powers. This was a specific threat to the nation that the Federalist Papers held to be a reason why a new constitution was necessary. [5] The existing situation created a risk of foreign alliances that would weaken or undermine the union the Articles of Confederation created.

In addition, states cannot levy import taxes or duties on imports or exports, except for small charges necessary to inspect goods that are being imported or exported. States were prohibited from having their own armed forces and navies, which would be used to control the seas and therefore the export and import of goods, nor could states enter into a war except for self-protection when invades and necessity required a response.

On the other hand, Article 10 of the Bill of Rights, which was added to the Constitution in order for it to be adopted provides that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, unless the federal government is specifically given a power, the power not delegated to the national government remains within the sovereignty of the state or the people themselves.

Conclusion

Article 1 of the Constitution is consistent with the goal of the framers to place the government first and foremost in the hands of their elected representatives. It is also consistent with their goal of both limiting the powers of the national government and of balancing those powers within and among the branches. In the aftermath of the Civil War, and the social dislocations wars of the early 20^th Century, there developed four different challenges to the system the framers envisaged:

1. The emergence of the national government as the dominant sovereign power;
2. The development of large administrative bureaucracies with the power to make regulations that they then enforce and interpret;
3. The emergence of the so-called “Imperial Presidency,” in which the President began to be the dominant figure in the national government, replacing the legislative branch in its constitutional supremacy;
4. The growth of the role of national financing in legislative elections, limiting the reliance of legislators on local funds for elections and their responsiveness to the needs of the people.

Near the end of this series of blogs, the challenges to limited government posed by each of these developments will be considered. Here, it is sufficient to remember that the framers could not have foreseen the complex, corporate society in which Americans now live with the consequent growth of the administrative agencies of government. The American Civil War resulted in a determination concerning the supremacy of the federal government, a supremacy that leaves open what would be best for the federal government to leave to the states. The Great Depression, Second World War, and Cold War ultimately resulted in the expansion of the federal government size and function far beyond what might have been anticipated by the framers. Finally, concentration of wealth and the development of large corporations who fund elections and seek corresponding control and benefits from government has created defects in the legislative role and responsibility.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] This does not mean that the other bodies are not involved in the legislative process. The President can propose and veto legislation subject to Congressional override. Existing interpretations of laws give guidance to legislators concerning what might or might not be appropriate legislation.

[2] The proper role of administrative agencies in rule-making, enforcement and interpretation are important issues for contemporary political thought.

[3] The founders, and especially Madison, were concerned about the danger of unrestricted democracy resulting in mob rule and the dominance of what he called “factions.” See, Federalist 10.

[4] Federalist Papers, No. 31.

[5] See, Federalist Papers, No. 42. The power to make war and the power to conduct foreign affairs are intimately intertwined, as the authors of the Constitution understood. Failures of foreign policy are a fertile seed ground for war, and therefore lodging both the power to make war and the power to conduct foreign policy in the national government are necessities for a functioning government.

The preamble of the Constitution is important, and understanding its deeper implications helps to understand why the body of the document took the form that it did. The Preamble reads:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

We the People of the United States

We the People. As the preamble begins, we remember a point previously made: Social compacts, constitutions, and the like rest upon a deeper foundation than the document itself. Compacts and constitutions follow pre-existing relationships and consequent identity. The Constitution begins with “We the People,” a recognition that a “people” already exist. In preceding weeks, we saw that the colonies that formed the United States had from the beginning a unique sense of identity. A significant number of citizens were from Europe, especially Great Britain. They spoke a common language. They were inheritors of a common social and political heritage, stretching from Biblical Times, to Greece and Rome, to Middle Ages Christendom, to the Enlightenment Era in which they lived and of which they were a product.

The thirteen members of the Articles of Confederation were conscious that they were forging a new nation different from those of the Europe. They were, as Edmund Burke noted, instinctively opposed to any form of servitude and for the extension of freedom. The states did not want to recreate in America the monarchies and nobility of Europe. They commonly resisted attempts by the British government to treat them in an unfair manner. They had fought as comrades in arms a long and bitter war, suffering near defeat before unexpected victory. They had a common series of legends from Lexington and Concord to Valley Forge to Yorktown.

The governmental institutions of the several states were similar despite their differences. They were all some form of representative democracy. They all subscribed to some version of English Common Law, and supported a government restrained by the rule of law. They had formed the United States of America through the vehicle of the Articles of Confederation, and they wanted that union to endure. They did not want a state-established religion.

Those that came to Philadelphia with minor adjustments in the Articles of Confederation in mind and those who came feeling that a dramatic adjustment needed to be made, both came with an identity as a part of “We the People of the United States.” They were one “people” and willing to make the compromises and adjustments required to protect their existing common political arrangements from failure.

We the People Forming a Different Form of Union. There is more to the “We the People” than a recognition that a people existed before the Constitution. The founders were forming a government that Lincoln would call “By the People, of the People, and for the People.” [1] In the beginning, many delegates assumed that the revisions to the Articles of Confederation would be approved not by the people, but by the sovereign states themselves.

The Convention ultimately disagreed with this strategy as they proposed to create a form of government with two sovereignties: the National Government, supreme in its spheres of operation, and the Sovereign States, sovereign within their retained spheres of responsibility. This system of dual sovereignty was an important innovation, and points towards and understanding that a nation dedicated to freedom would allow local governments, which by their nature are closer to the people a large measure of freedom in adapting to changing situations and in adopting innovative solutions to problems. At the same time, the national government would be supreme within the areas of responsibility given to it under the Constitution.

In Order to Form a “More Perfect” Union

As indicated last week, by May of 1787, there was a consensus that the union of the states created by the Articles of Confederation was seriously flawed. They had a union, but it needed to be improved. Notice that the founders did not propose that the union they were creating would be “perfect” It could be made “more perfect.” Those that met in Philadelphia in the summer of 1787 were aware that there were weaknesses in the Constitution they proposed. As indicated last week, slavery was an issue and many delegates disliked the Connecticut Compromise as finally adopted. It was necessary to enable the nation to move forward, but it allowed to continue an institution that many found immoral which was destined to be eliminated on both religious and moral grounds. [2]

The founders provided for an amendment process because of their understanding that the Constitution as proposed would need change to the extent that provisions were subsequently found unworkable. In point of fact, the “Bill of Rights” was added as part of the initial price of adopting the Constitution, so that by the time the constitution was adopted a “perfection” that many found lacking was supplied by amendment. In the history of the Constitution, it has been amended twenty-seven times in the process of the gradual “perfection” of the form of government the founders established.

Here we see the humility and pragmatism of the founders. They knew that the document was not perfect. It would have to be changed from time to time in a lawful process. Their idea was that a process of amendment and change enabled the Constitution to endure and adapt, and it also provided a way for change in the fundamental form of our government without violence and conflict.

The Goal of the Constitution

The founders had a goal stretching back far into the history of political philosophy. As far back as the Greeks and Romans, from Augustine to the end of the Middle Ages, it was recognized that governments had a goal: the “Common Good,” as that term was understood from time to time. The goal of a government was often phrased as either “the common good” or “peace” (such as in Augustine), which often amounts to the same thing. In the case of the Preamble, there is a recognition that there cannot be peace without justice. The kind of constant disturbance that had occurred under the Articles of Confederation was contrary to the ideal of social peace, as there had been rebellions (Shay’s Rebellion, for example), states engaging in economic warfare against one another, and other activities contrary to the attainment of the common good or social peace. [3]

Shay’s Rebellion, and the obvious foreign threats to the new nation, created a concern about the ability of the thirteen states to defend either themselves or the nation as a whole. In particular the inability of the Articles of Confederation to provide for a strong navy to protect commerce and a military establishment sufficient to deter foreign schemes to control one or more of the colonies was on the mind of the Convention in seeking to “provide for the Common Defense.” The continued economic warfare involving states attempting to secure economic advantage, was contrary to the ideal of the United States as what we would call a “free trade zone,” which most business interests regarded as necessary to promote the General Welfare of the states.

Taken as a whole, the opinion of the framers was that the Constitution as drafted would provide for a government more capable of securing the peace and prosperity, i.e., the “Common Good” or “General Welfare,” as they phrased it, of the several states. In my view, one of the signs of the deterioration of the existence of a notion of a “common good” in our society is the kind of “politics as war” that we have endured for many years. Those in power have lost the notion of the General Welfare or Common Good (not just the good of their party or group) and Social Peace as the end of society, which cannot be created without a concern for justice for everyone so far as possible. In particular, the utopian visions of many in our society are pursued with the mistaken notion that Social Peace will be the result when their views are adopted and those they see as retrograde removed permanently from political life. This is completely antithetic to a stable democracy and any lasting social peace.

Secure the Blessings of Liberty for Ourselves and our Posterity

Finally, the goal of the founders went beyond the immediate. Their desire was to see that the liberty and form of government that they had fought so hard to create was secured for future generations as well as for themselves. After the adoption of the Constitution, and continuing to this day, there was and are different ways of thinking about the legitimacy of the Constitution. The views of John Adams and of Thomas Jefferson often frame the discussion.

On the one hand, Jefferson thought that each generation had to reaffirm the fundamental validity of the Constitution. He was famously sympathetic to periodic revolutions. Other thoughtful statesmen, like John Adams felt that future generations owed a debt to the founders that was “paid” so to speak by their preservation and protection of the form of government we enjoy. This leads at some point to the idea of a living constitution, an ideal often criticized unfairly by conservatives.

At some point in the future, I intend to look at Jefferson’s notion of “Generational Sovereignty.” For now, I want to focus on the word “Posterity.” Obviously when a person is concerned about their “posterity” he or she attempts to leave them an inheritance. Once the person dies, he or she cannot manage that inheritance. Either the heirs will manage it or it will be managed by a trustee for their benefit. Most of the time, if wealth is inherited, it will have to be managed, and the assets that constitute that wealth will differ in character and make up from that immediately inherited. Changes will be made to adapt to changing circumstances.

It seems to me that this is the best analogy to guide Americans in maintaining our freedoms and the democratic republican form of government bequeathed to us by the founders. We are like heirs, and our political leaders are like trustees. Changes in our government must be made because society changes and will always change. Adaptations must be made.  In the future, I want to visit about the ways in which population growth, industrialization, emergence of large corporations, the growth of technology, an “information society, and the complexities of modern bureaucratic government have changed the way we live and for better and worse have put new stresses on our society and upon our form of government.

Against those who propose radical change in the character of the French Revolution and the modern revolutions of Europe and Asia, I think what is called for is good and wise stewardship of the government and institutions we have inherited. This involves both continuity and change. This continuity and change are the way in which, as heirs of wise parents, we manage the inheritance we have so fortunately received.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Abraham Lincoln, Gettysburg Address, November 19, 1863.

[2] The clause that counted slaves as only partial citizens was flawed from the beginning. It was necessary in order to entice the southern states to agree to the new form of government. The result of this compromise, however, was a continuing discord that would only be eliminated by the Civil War. The fact was that many of the delegates were opposed to slavery on religious and moral grounds. They did not desire to do anything that would continue the institution of slavery. I will deal with this aspect of the constitution in more detail when discussing the civil war amendments.

[3] Shays’ Rebellion was an armed rebellion in 1786-7 centered in the Western Massachusetts area led by a Revolutionary War veteran in response to an ongoing debt crisis and in opposition to the state government’s efforts to collect taxes both on individuals and their trades. Those who supported a stronger federal government, such as George Washington, felt that the rebellion was symptomatic of the need for a stronger national government. This event as much as any other galvanized those who felt a stronger national government was needed to action, resulting in the calling of the Constitutional Convention

 

Last week, we looked at the Articles of Confederation and Perpetual Union (Articles of Confederation), which constituted the first attempt of the colonies to form a common government. We learned that the Articles of Confederation were essentially the creation of a federation of independent states. The difficulty with this federation was that it lacked some essential elements of a strong polity: There was only an inadequate executive and judicial function, meaning there was no way to effectively carry out policy or enforce the failure of the states to meet financial and other obligations. There was no method of taxation, resulting in a state of constant near-bankruptcy. There was no effective way to stop the independent states from engaging in obstructions of interstate commerce. The provisions for the United States of America to conduct foreign affairs were not satisfactory. Finally, there was no way to mount a consistent effective defense establishment, with the result that the new nation was vulnerable to attempts to intervene in its affairs militarily. The result was that in 1786, the first Constitutional Convention was called.

The convention opened on May 25, 1787 in Philadelphia, Pennsylvania. The story of the convention is beyond the scope of this blog, but it merits study by every American. There are many fine studies of the event, the most popular of which is “Miracle in Philadelphia” by Catherine Drinker Bowen. [1] The convention is unique in history for the quality of its leadership and the experience and judgement of its members.

As its initial act, George Washington was elected its presiding officer. Washington did not talk a great deal during the convention but his presence was important. Nearly everyone present knew that whatever form of government was chosen, Washington was its likely first leader. His prestige was such that, even without talking, he influenced events.

One of the delegates, future President James Madison, is of special note. During the course of the convention three basic structure were suggested. Many delegates initially felt that the convention had been called to make amendments to the Articles of Confederation, and that the convention was neither authorized nor was it entitled to suggest the kind of sweeping change the Constitution ultimately embodied.

What is known as the “Virginia Plan” was the first presented and formed the course of the debate. Authored by James Madison of Virginia, this plan provided for three distinct branches of government (legislative, executive, and judicial) with legislative branch divided into both an upper and lower house. Madison arrived well-prepared and with the basic books and materials he felt necessary for the guidance of the convention intellectually. He was the most important drafting force behind the final document. Madison’s notes taken as a journal during the convention are, next to the Federalist Papers, the most important primary source for interpreting the constitution in light of the intent of its framers. [2]

Many smaller and southern states and delegates were unsure of the wisdom of the Virginia Plan.  They initially opposed Madison’s ideas. In response to Madison’s ideas, William Patterson of New Jersey submitted the “New Jersey Plan.” This plan was similar to the Articles of Confederation, with a unicameral legislature would be in which each state had a single vote. In fairness to this plan, it was probably much closer to what those who called the convention intended. Patterson is largely forgotten today, but he was one of the foremost intellectual figures at the convention.

Finally, the “moderate” Virginia plan and the more traditional New Jersey plan functioned to guide the debate towards a compromise, but it was not certain that the compromise would be effective. Alexander Hamilton then proposed “the Hamilton Plan,” which envisioned a much stronger central government along the lines of Great Britain. Under Hamilton’s plan the national government would be supreme and would appoint state governors. There would be a strong national governor with broad executive powers. It was unclear then, and is still unclear today whether Hamilton was serious about the plan or whether its presentation was tactical to push the inevitable compromise towards a stronger central government.

In the end, two delegates from Connecticut, Roger Sherman and Oliver Ellsworth proposed that has become known as “the Connecticut Compromise” or the “Great Compromise,” a way of breaking the deadlock between the larger and smaller states on the issue of legislative representation. This compromise proposed a system of dual representation. There would be a House of Representatives in which each state’s number of seats would be proportional to population. There would also be a Senate in which all states would have the same number of seats. [3] In July 1787, the Great Compromise was adopted by a one-vote margin, clearing the way for the adoption of a final constitution.

Conclusion

The adoption of the constitution is one of the great stories of human history. We were blessed that an unusually capable group of leaders were chosen to address the problems of the Articles of Confederation. Naturally, they were human, and mistakes were made—as they are and always will be made within the boundaries of human history. Nevertheless, they did the best they could and structured a republican democracy that has endured for centuries.

The fact that they were willing to compromise is something needed in our current situation. The “all or nothing” politics of power that has characterized our political system for decades now is not functional and prevents the kind of practical compromise that is needed in many areas, taxation and the deficit being two very important areas. We are in need of wise statesmanship.

[1] Catherine Drinker Bowen: Miracle in Philadelphia: The Constitutional Convention May to September 1787 (New York, NY: Little Brown and Company, 1966). This is a very well-done popular history. For those with a more scholarly bent, there are various others with a more academic tone. I believe her work to be unmatched, however.

[2] These notes are available both online and in printed form. See, “Notes of Debates in the Federal Convention of 1787” https://avalon.law.yale.edu/subject_menus/debcont.asp (Downloaded June 2, 2021). Printed versions are available on amazon.com.

[3] In the end, the Connecticut compromise was amended to base representation in the House on total white population of each state and three-fifths of the black population. This provision of the Constitution is the most debated today and the most criticized. As any close student of the debate knows, it was reluctantly agreed to because without it there could be no agreement and the convention would have failed. Nevertheless, it had predicable unfortunate consequences that took the American Civil War to resolve.