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.