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Historic Roots of the Legislative Branch (Checks and Balances: Three Branches of American Government)
The legislature is the branch in government that makes the laws. The legislature for the United States of America is called Congress. The U.S. Constitution, the blueprint for American government, divides Congress into two chambers: the Senate and the House of Representatives.
Dividing the legislature into two chambers is what political scientists call bicameralism. The word bicameralism comes from Latin words that mean "two chambers." A legislature with only one chamber is called unicameral. An example of unicameralism can be found in Nebraska, where, as of 2005, the legislature makes up the entire legislative branch of the state government.
Congress in the Constitutional Convention
In late spring and summer 1787, delegates from twelve of the thirteen American states met in Philadelphia, Pennsylvania, for a Constitutional Convention. The delegates, fifty-five white men, included Americans such as Benjamin Franklin (1706790), George Washington (1732799), James Madison (1751836), and Alexander Hamilton (1757804). At the time, America was governed under the Articles of Confederation by a unicameral Congress with no president and no judiciary, or federal court system.
The delegates to the Constitutional Convention were there to discuss how to revise America's government under the Articles of Confederation to make the government stronger. Rhode Island was the only state that refused to send delegates to the convention. The men in control of Rhode Island wanted strong state governments, not a powerful national government.
Although they were only supposed to recommend changes to the Articles of Confederation, the delegates soon voted to recommend replacement of the Articles with a wholly new blueprint for American government. This document they would call the Constitution of the United States of America.
One of the questions the delegates faced when writing the Constitution was what kind of legislature to propose for America. History provided many examples of legislatures with more than one chamber, from the ancient Roman Republic to the British Parliament to most of the legislatures in America's first thirteen states. Political philosophers who influenced the delegates in Philadelphia had written that bicameralism was the best way to give representation in government to both the wealthy class of society and to the class of free men who did not have considerable wealth. These factors (plus the struggle between large and small states) led the delegates to recommend a bicameral legislature in the Constitution.
The Roman Republic
The Roman Republic, centered around the city of Rome (in present-day Italy), lasted from around 509 BCE to 27 BCE. The governments that ruled during this period were republican to some extent. A republican government is one in which power rests with the people, who exercise that power through elected representatives. During the Roman Republic, all free adult men were generally allowed to vote. Women and slaves could not vote, so it was not a true republic.
The Roman Republic that operated during the early part of this era is the one that most influenced the men who wrote the U.S. Constitution. Its government contained two consuls, a Senate, and two assemblies. The consuls were military generals who served as the executive heads of the Republic, much like the president of the United States. The consuls were elected by the men who served in the centuriate assembly, a body of men elected by the free adult men of the Republic. It dealt mainly with issues of war and peace.
Roman Senate
The Roman Senate and the second assembly, called the tribal assembly, were the legislative bodies in the Roman Republic. The Senate was left over from the period 753 BCE to 509 BCE, when Rome was governed by a succession of seven kings. The Senate during this period acted as an advisor to the kings, who appointed the members of the Senate, mostly from the wealthy class of society. Although it was just an advisory body, the Senate, according to Marchamont Nedham in The Excellencie of a Free-State, insisted on having a voice in legislation:
In old Rome, we find Romulus their first king cut into pieces by the Senate, for taking upon him to make and execute Laws at his own pleasure. And Livy tells us, that the reason why they expel'd Tarquin their last King, was, because he took the Executive and Legislative Powers both into his own hands, making himself both Legislator, and Officer, inconsulto Senatus without advice, and in defiance of the Senate.
When Rome became a republic around 509 BCE, the Senate remained part of its government. Just as Roman kings had appointed men to the Senate, the consuls of the republic had this power, too, so the men of the Senate continued to be drawn from the wealthy class. Although the Senate was supposed to be an advisory body without lawmaking authority, it was so powerful that its recommendations to the consuls and to the tribal assembly usually became law.
Tribal assembly
The tribal assembly was the official lawmaking authority in the Republic. It was divided into geographical regions, or tribunes, where the free adult men elected their representatives to the assembly. In theory, the tribal assembly could enact laws that the people wanted without approval by the Senate. The Senate's status and power, however, effectively limited the tribal assembly's lawmaking authority to what the Senate would approve.
In the sixteenth century, a political philosopher named Niccolò Machiavelli (1469527; pronounced MOK-ya-VEL-lee) wrote a series of books called Discourses on the First Ten Books of Titus Livius. Machiavelli, whose philosophy would influence the convention delegates in Philadelphia in 1787, championed the system set up by the Roman Republic. Machiavelli said that governments have cycles that begin with monarchy (rule by one), change into aristocracy (rule by the wealthy), and change again into democracy (rule by the people). The problem with all three forms of government, he said, is that they all lead to corruption.
The Roman Republic, in Machiavelli's opinion, had solved this problem by combining in one government monarchy (the consuls), aristocracy (the Senate), and democracy (the popular assemblies):
Fortune favored her [the Roman Republic], so that, although the authority passed successively from the kings to the nobles to the people, . . . yet the royal authority was never entirely abolished to bestow it upon the nobles; and these were never entirely deprived of their authority to give it to the people; but a combination was formed of the three powers, which rendered the constitution perfect, and this perfection was attained by the disunion [separation] of the Senate and the people.
The political philosophers
Unlike most Americans at the time, the delegates at the Constitutional Convention had the privilege of enjoying years of schooling and education. Classic education then involved reading the works of philosophers from western European history. These included the writings of Greek philosopher Aristotle (384 BCE22 BCE), English philosopher John Locke (1632704), French philosopher Charles Montesquieu (1689755), and Scottish philosopher David Hume (1711776).
Aristotle on men of property
Aristotle was a Greek scientist and philosopher whose writings defined those fields of study for
Aristotle, says Roelofs, felt that the best way for the groups to protect their interests was for each group to have representation in government. Hence, Aristotle recommended that government have a monarch for representing the extremely wealthy, a council for representing the moderately wealthy, and an assembly for representing free men without considerable wealth. Government should not be able to pass a law or take other action, according to Aristotle, without approval by all three bodies.
The legislature proposed by the Constitutional Convention resembled Aristotle's vision in a number of respects. The House of Representatives was to be elected by people in the states who, under state law, had the right to elect representatives to their state legislatures. This generally meant free adult men who owned at least a moderate amount of property.
In contrast, the Constitution originally provided for the Senate to be selected by the legislatures of the states, not by the people. State laws usually required that the men elected to the state legislatures own a considerable amount of property. Hence, the people who would choose the senators of the United States would be men of wealth.
Finally, the U.S. Constitution generally requires that both Congress and the president approve bills for them to become law. This mirrored Aristotle's suggestion that each body of government approve governmental action in order to protect the interests of all those represented.
John Locke and the separation of powers
John Locke was an English scientist and philosopher who helped launch the Age of Enlightenment. The Age of Enlightenment was a period in the seventeenth and eighteenth centuries during which men used reason to change the study of philosophy and politics. Locke's father was a country attorney, which allowed Locke to afford schooling at Christ Church college in Oxford, England.
Locke's most famous political work is called Two Treatises of Government. The second treatise, or essay, published in 1689, contains his theory of how government should be organized. Locke argued that the lawmaking branch of government must be separate from the executive branch, the one that executes the laws:
The Legislative Power is that which has a right to direct how the Force of the Commonwealth shall be imploy'd for preserving the Community and the Members of it. But because those Laws which are constantly to be Executed, and whose force is to continue, may be made in a little time; therefore there is no need, that the Legislative should be always in being, not having always business to do. And because it may be too great a temptation to human frailty apt to grasp at Power, for the same Persons who have the Power of making Laws, to have also in their hands the power to execute them, whereby they may exempt themselves from Obedience to the Laws they make, and suit the Law, both in its making and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the Community, contrary to the end of Society and Government: Therefore in well order'd Commonwealths, where the good of the whole is so considered, as it ought, the Legislative Power is put into the hands of divers [diverse] Persons who duly Assembled, have by themselves, or jointly with others, a Power to make Laws, which when they have done, being separated again, they are themselves subject to the Laws, they have made; which is a new and near tie upon them, to take care, that they make them for the publick good.
The U.S. Constitution follows this advice by making the president separate from Congress. Congress, however, would grow to be in session almost year-round, contrary to Locke's opinion that legislatures need not be.
Charles Montesquieu on legislation
Charles Montesquieu was a French philosopher whose The Spirit of Laws, published in 1748, greatly influenced the men who wrote
Locke said much the same thing before Montesquieu. Writing in Two Treatises of Government, Locke said, "The great and chief end therefore, of Men's uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property."
When they used the word "Property," Montesquieu and Locke were referring not only to material wealth, but also to life and liberty, or freedom. The men who wrote the U.S. Constitution in 1787 paid particular attention to the wealth aspect of "Property" by promoting commerce, or business, through the legislative branch. The powers of Congress contained in Article I, Section 8, of the Constitution include the power to tax imports, regulate commerce and bankruptcy, coin and regulate money, punish counterfeiting (the making of fake money), and patent (protect) scientific inventions.
As for life, the Constitution of 1787 allows Congress to create an army and navy to be run by the executive branch of government for national defense.
On the subject of liberty, the Constitution prevents Congress from enacting bills of attainder or ex post facto laws. A bill of attainder is a law that convicts a person of treason or other serious crime without a trial. The Constitution defines treason as levying war against the United States or giving aid and comfort to its enemies. An ex post facto law is one that punishes a person for doing something that was not illegal when done. The Constitution also prevents Congress from eliminating the writ of habeas corpus, which is a procedure a prisoner can use to get out of jail when being held illegally. Finally, the Constitution guarantees citizens a trial by jury when accused of federal crimes, a right Great Britain sometimes denied the colonists before 1776, when America declared independence.
The Constitution of 1787 fell short of protecting liberty in one serious fashion: it protected slavery with three separate provisions. First, in calculating a state's population for determining the number of representatives the state would have in the House of Representatives, the Constitution said each slave would count as only three-fifths of a person. Second, the Constitution prevented Congress from outlawing the importation of slaves before 1808. Third, the Constitution said that if a slave escaped to a free state, that state would have to return the slave to captivity.
David Hume on democracy
David Hume was an eighteenth-century Scottish philosopher who wrote occasionally on politics. One topic that he covered was the issue of democracy. A pure democracy is a form of government in which the people themselves exercise the powers of government. Because they require the active participation of every citizen, pure democracies are impractical in large states or nations (although the Internet could conceivably change that one day).
Practicality aside, many of the Founding Fathers, the men who shaped early America, were actually hostile to the notion of democracy. John Adams (1735826), the country's second president, wrote in a letter to Revolutionary War leader Samuel Adams (1722803), "When the people, who have no property, feel the power in their own hands to determine all questions by a majority, they ever attack those who have property. . . ."
David Hume also considered democracy dangerous. Writing in 1742 in That Politics May Be Reduced to a Science, Hume expressed his opinion that democracy in the Roman Republic eventually led to anarchy, the absence of law and order. Much like Aristotle, then, Hume recommended a bicameral legislature. One body, he said, should represent the nobility (men of wealth), and the other should contain representatives elected by the free men.
Charles Montesquieu on representation
The Constitution established government by representation in the House of Representatives. Representation is when politicians are elected to represent the interests of citizens from a certain area. Montesquieu wrote of representation in his Spirit of Laws:
As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole body of the people. But since this is impossible in large states, and in small ones is subject to many inconveniences, it is
fit the people should transact by their representatives what they cannot transact by themselves.The inhabitants of a particular town are much better acquainted with its wants and interests than with those of other places; and are better judges of the capacity of their neighbors than of that of the rest of their countrymen. The members, therefore, of the legislature should not be chosen from the general body of the nation; but it is proper that in every considerable place a representative should be elected by the inhabitants.
The great advantage of representatives is, their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy.
Consistent with this philosophy, the Constitution provides that members are elected to the House not from the population of America generally, but "by the people of the several states." It further defines which of those "people" get to cast such a vote: "electors in each state shall have the qualifications requisite [required] for the electors of the most numerous branch of the state legislature." In other words, the right to elect representatives is governed by state law. Just as Montesquieu said only "free agents" should elect representatives, generally in 1787, only white adult men with property had the right to elect representatives under state laws and, hence, the right to elect representatives to the House.
British Parliament
The thirteen American colonies separated from Great Britain in 1776 partly because the government of Great Britain was treating them unfairly. The American Declaration of Independence from that year lists many of the colonists' complaints, primarily blaming King George III (1738820; reigned 1760820), Great Britain's monarch at the time. The king, however, was only a portion of the colonists' troubles.
The eighteenth-century legislature of Great Britain had three branches. The king and his advisory council made up one branch. The other two were the House of Lords and the House of Commons. Legislation had to be approved by all three branches to become law.
The House of Lords was often called the upper chamber of Parliament (the name for the British legislature). Its members were religious leaders, such as bishops and archbishops, and others from the noble class of English society. Instead of being elected to office, members of the House of Lords inherited their seats. This meant that the House of Lords represented the wealthiest class of English society, not the general population.
The House of Commons, also called the lower chamber, was the elective branch of Parliament. To vote in elections, though, one had to be a man who owned a certain amount of property. This meant that the House of Commons tended to represent the wealthy merchants of Great Britain.
Congress, as constructed by the Constitutional Convention of 1787, resembled Parliament in its separation of powers, its checks and balances, and its capacity to represent the wealthier members of society. It differed primarily by making office in the upper chamber (the Senate) elective rather than hereditary (passed on from one generation to the next).
Parliament and the separation of powers
When Locke wrote of the separation of powers in 1689, that principle was already a celebrated feature of British government. Clement Walker, a member of Parliament in 1648, wrote that year of the way British government divided power into three branches:
The King is the only supreme Governour of this Realme of England, to regulate and protect the people by commanding Laws to be observed and executed; and to this end He (and He alone) beareth not the Sword in vaine; yet the King by himselfe can neither make, repeal, or alter any one law, without the concurrence of both Houses of Parliament, the Legislative power residing in all three, and not in any one.
The Constitution of 1787 adopted much of this by requiring both chambers of Congress and the president of the United States to approve a bill for it to become law. An important difference, however, is that if the president rejects a bill by vetoing it, Congress can override the veto by a two-thirds vote in both chambers. In this way, the Constitution gave more lawmaking power to Congress than to the president, while in England, the power between Parliament and the monarch was equal.
Parliament and checks and balances
Checks and balances refers to the ability of one branch of government, such as the legislature, to limit the power of another branch, such as the executive. In a bicameral legislature, however, it also refers to the ability of one chamber to limit the power of the other. Writing in 1765 in Commentaries on the Laws of England, legal scholar William Blackstone celebrated the checks and balances of the British system:
And herein indeed consists the true excellence of the English government, that all the parts of it form a mutual check upon each other. In the legislature, the people [House of Commons] are a check upon the nobility [House of Lords], and the nobility a check upon the people; by the mutual privilege of rejecting what the other has resolved. . . . Thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest; for the two houses naturally drawing in two directions of opposite interest, and the prerogative [power] in another still different from them both, they mutually keep each other from exceeding their proper limits.
Parliament and representation
The House of Lords represented the nobility of Great Britain. The U.S. Constitution was written to prevent nobility from having a part in American government. Article I, Section 9, says, "No title of nobility shall be granted by the United States." The Constitution of 1787 also provided that the so-called upper chamber of Congress, the Senate, would be selected by the state legislatures every six years. Members of the Senate would not automatically hold the office for life, and the office would not be hereditary, as in the House of Lords.
Yet some of the Founding Fathers liked to think of an American nobility that would be represented by the Senate. Writing in The Founders' Constitution, editors Philip B. Kurland and Ralph Lerner observed, "It was generally the case that the property qualifications for electing state senators and for holding the office itself were higher and more restrictive than for electors and members of the first [lower] house." In a letter to Samuel Adams in 1790, John Adams wrote:
The nobles have been essential parties in the preservation of liberty, whenever and wherever it has existed. In Europe, they alone have preserved it against kings and people, wherever it has been preserved; or, at least, with very little assistance from the people. . . . By nobles, I mean not peculiarly an her editary nobility, or any particular modification, but the natural and actual aristocracy among mankind. The existence of this you will not deny. You and I have seen four noble families rise up in Boston, he Crafts, Gores, Dawes, and Austins. These are as really a nobility in our town, as the Howards, Somersets, Berties, &c., in England....
The numbers of men in all ages have preferred ease, slumber, and good cheer to liberty, when they have been in competition. We must not then depend alone upon the love of liberty in the soul of man for its preservation. Some political institutions must be prepared, to assist this love against its enemies. . . . The multitude [of free men], therefore, as well as the nobles, must have a check.
Colonial and state legislatures
In 1787, Americans had a century and a half of experience under state and colonial legislatures that were mostly bicameral. This history influenced the decision to propose a bicameral legislature for the new government under the Constitution.
England created the colony of Massachusetts by charter in 1629. A charter was a document that established the boundaries of a colony and the rules for its governance. The original charter for Massachusetts said that the free men in the colony would annually elect a governor, a deputy governor, and eighteen assistants for operating the government. The population of free men, however, would make the laws.
In 1630, the colony changed this structure so that the free men would elect only the assistants. The assistants would then elect the governor and deputy governor and be solely responsible for making the laws. In other words, Massachusetts at the end of 1630 had a unicameral legislature.
As told by Thomas F. Moran in The Rise and Development of the Bicameral System in America, in 1631, the men of Watertown, Massachusetts, objected to a tax law passed by the assistants. In May of the following year, some of the free men of Massachusetts met in their towns to elect two deputies from each town. The deputies were to meet in the General Court (the name for the government) to advise the governor and assistants. For the next four years, the deputies and assistants met and voted on legislation as one body of government.
In 1636, the General Court decided that the assistants and deputies should vote as separate chambers. The decision was necessary because two years earlier, a question came before the General Court that divided the assistants and deputies, namely whether the people of Newtown could move to another part of the colony. Counted together, the votes of the deputies and assistants would have approved the request. Counted alone, the votes of the assistants would have denied the request. The request was eventually resolved when the towns of Boston and Watertown gave some land to Newtown. But the deadlock over the issue made it necessary to make the deputies and assistants two chambers in a bicameral legislature.
Eight years later, sitting as a court of law, the General Court had to decide whether a pig held by a man named Captain Keayne was really owned by a poor woman named Mrs. Sherman, who claimed that the pig had wandered away. Still sitting together though counting their votes separately, the assistants and deputies divided vigorously on the question. According to Moran, "As an outcome of the controversy the General Court resolved that the two bodies should sit apart, that bills [of law] might originate in either, and that a bill having passed one house should go to the other for 'assent or dissent' [agreement or disagreement]." Hence, Massachusetts started with a unicameral legislature, but ended up with a bicameral one.
New Jersey
The history of bicameralism in New Jersey is an example of the struggle between aristocracy and free men. New Jersey became a colony in February 1665. The charter was called "The Concessions and Agreement of the Lords Propriators of the Province of New Cesarea or New Jersey to and with all and every the Adventurers and all such as shall settle or plant there." The Concessions was a contract, or agreement, between the English men, called proprietors, who would oversee the colony for Great Britain, and the free men who would settle in the colony.
The Concessions created a government composed of a governor, a council, and an assembly of deputies. The proprietors would appoint the governor, who in turn would appoint the council. The free men of New Jersey would appoint the deputies. The Concessions said that the governor, council, and deputies would serve as one body, not as three branches.
As told by Moran, the governor first called the council and deputies into session in May 1668. At the time there were seven councilors and ten deputies. The councilors insisted on sitting as a separate branch of government. Otherwise, the ten deputies could always outvote them when the free men wanted something that the proprietors did not. Although their wish was contrary to the Concessions, the councilors won the argument, at first.
By November of that year, however, the deputies refused to continue sitting separately from the council. Four years later, the free men set up a government separate from the one created by the Concessions. This led the governor and council to send two men back to England to ask the proprietors for help with the situation.
In December 1672, the proprietors signed a new document, called a Declaration. The Declaration said that under the original Concessions, the governor and council were supposed to sit together, separate from the assembly of deputies. Further, any law proposed by the deputies would have to be approved by the governor and council.
The free men of New Jersey did not like this turn of events. In October 1681, the deputies wrote a letter saying that, in their opinion, the Declaration was a violation of the original Concessions. So the deputies asked that the Declaration be nullified, or cancelled, and that the government sit as a single body.
The following month, a group of councilors visited the deputies, asking them to meet to discuss the situation. When
the deputies refused, the councilors delivered a letter saying the assembly of deputies was dissolved. The letter, according to Moran, compared the deputies with the angel Lucifer, who, in Christianity, fell to hell after trying to take over heaven: "It was Lucifers Pride that Putt him upon settling himselfe where God never intended to sett him and his Presumption produced or was the forerunner of his fall."
Articles of Confederation
Beginning in 1781, the government of the United States operated under the Articles of Confederation. The Articles created a unicameral legislature, called Congress, without a separate executive and judicial branch. While the men who wrote the Constitution in 1787 rejected this structure, many of the powers of Congress under the Articles became the powers of Congress under the Constitution.
For the Founding Fathers, one of the primary purposes of federal government was to protect America in war. So the Articles of Confederation gave Congress the power to establish an army and a navy, to make the rules for their operation, and to determine questions of war and peace. Congress under the Constitution has the same powers, although the president of the United States often engages in military action without a declaration of war by Congress.
Promotion of commerce was another primary purpose of federal government for the Founding Fathers. Under the Articles of Confederation, Congress had the power to create money and post offices. It also could appoint courts for handling trials of people accused of piracy, or robbery on the high seas. Congress also had the power to regulate trade with American Indian tribes. Congress under the Constitution has all these powers, too.
Finally, Congress under the Articles had the power to make a budget and raise or borrow money for operating the nation's government. In practice, Congress had difficulty making the states contribute their share of money. This was one of the main reasons that the Founding Fathers decided to meet in 1787 to create a new federal government. The Constitution they wrote gave Congress stronger power to raise and collect money through taxes.
Clark, J. C. D. The Language of Liberty, 1660832. Cambridge, Eng.: Cambridge University Press, 1994.
Kelly, Alfred H., and Winfred A. Harbison. The American Constitution: Its Origins and Development. 5th ed. New York: W. W. Norton & Co., 1976.
Kurland, Philip B., and Ralph Lerner. The Founders' Constitution. 5 vols. Indianapolis: Liberty Fund, 1987.
Lintcott, Andrew. The Constitution of the Roman Republic. Oxford: Clarendon Press, 1999.
Millar, Fergus. The Roman Republic in Political Thought. Hanover and London: Brandeis University Press and Historical Society of Israel, 2002.
Moran, Thomas Francis. The Rise and Development of the Bicameral System in America. Baltimore: The Johns Hopkins Press, 1895.
Nedham, Marchamont. The Excellencie of a Free State. London: A. Millar and T. Cadell, 1767.
Pole, J. R. Political Representation in England and the Origins of the American Republic. London: Macmillan, 1966.
Roelofs, H. Mark. The Poverty of American Politics. 2nd ed. Philadelphia: Temple University Press, 1998.
Volkomer, Walter E. American Government. 8th ed. Upper Saddle River, NJ: Prentice Hall, 1998.
Constitutional Role of the Legislative Branch (Checks and Balances: Three Branches of American Government)
- Washington, District of Columbia
- Bicameralism and representation
- Powers of Congress
- For More Information
Fifty-five men gathered in Philadelphia, Pennsylvania, from May to September 1787 for a national convention. Their job was to propose revisions to the Articles of Confederation, the framework for American government at that time. Operating under the Articles, Congress (the only branch of the American government then) was having trouble raising money to run the government. In correspondence a year earlier between two Massachusetts politicians, Continental congressman Rufus King (1755827) wrote to a former Continental congressman, Elbridge Gerry (1744814). According to The Founders' Constitution, King wrote, "We are without money or the prospect of it in the Federal Treasury; and the States, many of them, care so little about the Union, that they take no measures to keep a representation in Congress."
The delegates to the Constitutional Convention were primarily from the wealthy class of society. Most were lawyers, and most either owned land and slaves or had shipping or manufacturing businesses. Half of the delegates were creditors, people who loaned money to other people. Most of them owned bonds issued by the United States, which means they had loaned money to the United States. None of the delegates were female, African American, or Native American, and none of them were poor.
Writing in The American Constitution in 1976, historians Alfred H. Kelly and Winfred A. Harbison said:
The Philadelphia Convention of 1787 was one of the greatest creative assemblages [groups] of the modern world. . . . It fashioned a frame of government [the U.S. Constitution] embodying the most adequate mechanism for a federal state ever achieved by man, and it produced at the same time a brilliant compromise between the requirements of adequate governmental authority and effective controls upon the exercise of political power.
In A People's History of the United States in 2003, historian Howard Zinn offered a different view of the convention of 1787:
The Constitution was a compromise between slave-holding interests of the South and moneyed interests of the North. For the purpose of uniting the thirteen states into one great market for commerce [business], the northern delegates wanted laws regulating interstate commerce, and urged that such laws require only a majority of Congress to pass. The South agreed to this, in return for allowing the trade in slaves to continue for twenty years before being outlawed.
The powers of Congress under the Constitution of 1787 reflect what Kelly, Harbison, and Zinn wrote. The Constitution makes Congress the lawmaking branch of the federal government. Its lawmaking powers relate mostly to either commerce or the military. While arguably making Congress the most powerful branch of government, the Constitution limits that power by creating an executive branch for enforcing the laws, and a judicial branch for deciding cases under the laws.
Separation of powers
James Madison (1751836) was a Virginia delegate to the Constitutional Convention who later became the fourth president of the United States. Writing in The Poverty of American Politics, Mark Roelofs said Madison believed the Founding Fathers faced the question of developing a government for humans, who are "prone absolutely to selfishness, competition and, no matter how disguised, a war of all against all." In other words, Madison saw government as an arrangement between the members of society, who are selfish and always competing against each other.
This attitude is reflected in the Founding Fathers' writings on the separation of powers. Separation of powers means giving the legislative, executive, and judicial powers of government to different people in different branches.
From 1787 to 1788, Madison, New York politician Alexander Hamilton (1757804), and Secretary of Foreign Affairs John Jay (1745826) wrote a series of essays called "The Federalist." They wrote the essays to convince Americans to adopt the U.S. Constitution, which had been proposed by Congress after the Constitutional Convention in September 1787. Writing in The Federalist, No. 47, Madison said, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny [dictatorship]."
John Adams (1735826) was a signer of the American Declaration of Independence in 1776 who would become the nation's first vice president and second president. In 1787, Adams wrote Defence of the Constitutions of Government of the United States to support the proposed Constitution. In it (as reprinted in The Founders' Constitution), Adams said that if one group of men had all three powers of government, "they would invade the liberties [freedoms] of the people, at least the majority of them would invade the liberties of the minority, sooner and oftener than an absolute monarchy. . . ."
Under the Articles of Confederation, Congress had power both to make the laws and to execute, or enforce, them. When the federal convention sent the proposed Constitution to Congress on September 17, 1787, Virginia delegate George Washington (1732799) included a letter explaining the need for a new system with separated powers:
The friends of our country have long seen and desired, that the power of making war, peace and treaties, that of levying money and regulating
commerce, and the correspondent executive and judicial authorities should be fully and effectually vested in the general government of the Union; but the impropriety [incorrectness] of delegating [giving] such extensive trust to one body of men is evidentence results the necessity of a different organization.
The Constitution of 1787 separated the powers of American government by giving Congress the power to make the laws, the president and the executive branch the power to enforce them, and the judicial branch the power to decide cases under the laws.
Checks and balances
The Constitution separated the powers of American government, but not completely. Each branch has the power to allow it to control, to some extent, the powers of the other branches. This is called the system of checks and balances.
The president, for example, checks the power of Congress with his power to veto, or reject, laws passed by Congress. In turn, Congress checks the president's power with the power to override a presidential veto by a two-thirds vote in both the House of Representatives and the Senate. The judiciary, which refers to the Supreme Court and lower federal courts, checks the power of both Congress and the president with the power to review government action to make sure it does not violate the Constitution.
When Congress proposed the new Constitution in 1787, some Americans opposed the system of checks and balances because they felt it violated the principle of separation of powers. The result, they feared, would be the tyranny that results when one person or governmental body has all three powers.
James Madison responded to these concerns in The Federalist, No. 47, on January 30, 1788. Using the governments of Great Britain and of the thirteen American states as examples, Madison said no government in history had separated the branches completely. Instead, he argued, the separation of powers only meant "that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted [destroyed]."
Some scholars believe that the system of checks and balances creates a government of shared powers, not of separated powers. (For more on checks and balances, see chapters 7 and 8.)
Bicameralism and representation
After agreeing to separate the powers of government into three branches, the Founding Fathers at the Constitutional Convention had to design each branch. Historically, legislatures contained one or two chambers. A legislature with one chamber is called unicameral, and a legislature with two chambers is called bicameral. The root of these words is the Latin word camer, which means "chamber."
The convention of 1787 proposed that America's legislature, called Congress, be bicameral. One chamber would be called the House of Representatives, and the other would be called the Senate. For a bill to become law, both chambers of Congress would have to approve it by a simple majority. (For more information on how a bill becomes law, see chapter 6, "Daily Operations of the Legislative Branch.")
Eleven of the thirteen American states had bicameral legislatures at the time, so whether to make Congress bicameral was not a point of great debate at the convention. What the delegates argued about was the composition, or makeup, of each chamber. They had to decide how many members each state would have in each chamber, and how those members would be elected. This divided the delegates of the large states from those of the small, and the delegates in the northern states from those in the south.
Big versus small
On May 27, 1787, Virginia delegate Edmund Randolph (1753813) presented the Virginia Plan to the convention. The Virginia Plan proposed that the free men of the states elect members to the House of Representatives (called the lower chamber at first). In turn, members of the House would choose the members of the Senate (called the upper chamber) from nominations, or proposals, made by the state legislatures.
The Virginia Plan caused great disagreement and divided the delegates according to the populations of their states. Most of the large states, including Massachusetts, North Carolina, Pennsylvania, South Carolina, and Virginia, wanted free men to control elections to Congress. They also wanted state population to be the basis for determining how many members each state would have in each chamber. Most of the small states, primarily Delaware, Maryland, New Jersey, and New York, wanted at least one chamber of Congress to be elected by the states, and they wanted that chamber to provide equal representation to each state.
On June 7, the large states compromised on the issue of elections when the delegates agreed that free men would elect the members of the House, and state legislatures would elect the members of the Senate. Reaching agreement on how many members each state would have in each chamber was more difficult. On June 11, Connecticut delegate Roger Sherman (1721793) proposed another compromise. He suggested that representation in the House be based on population, and that representation in the Senate be equal for each state.
The large states initially rejected this proposal, and there was vigorous debate on the question for a few weeks. James Madison argued that the small states had no reason to fear the large states in Congress because the large states had different economies: Massachusetts's was based on fish, Pennsylvania's on flour, and Virginia's on tobacco. Sherman argued that just as a poor man has the same single vote as a rich man, so the small states should have votes equal to the large ones. Alexander Hamilton said it was a question of neither liberty nor equality, but of power.
Debate eventually led to the compromise originally suggested by Sherman. While the delegates from the large states had enough votes not to compromise, they worried that the small states would refuse to adopt the Constitution if it did not give them equal power in one chamber. Hence, the delegates wrote the Constitution to give the states equal representation in the Senate, with two senators per state.
Looking back at the compromise almost two centuries later in The American Constitution, Kelly and Harbison said it proved to be harmless for the large states. In their opinion, important issues in the Senate tend to divide the senators by regions, not by the size of their states.
North versus South
The preamble to the Constitution says one of its purposes is to "secure the blessings of liberty" for the "People of the United States." The term "people," however, did not include African Americans or other slaves. Rather than strike down slavery, the Constitution protected it.
The three-fifths compromise on representation in the House of Representatives was one way the Founding Fathers protected slavery. The delegates to the Convention agreed that state populations would determine the number of representatives a state got in the House: at most, one representative for every thirty thousand people. The question that arose was whether slaves would count as people for calculating representation.
Delegates from the northern states, where slavery was not essential to the economy, argued that slaves should not count toward representation in the House. They said that since slaves were property, only free people should count.
The southern delegates agreed that slaves were property, but still wanted them to count for representation. That way their slave populations would increase the number of representatives they got in the House.
Under the three-fifths compromise, the delegates agreed that each slave would count as three-fifths of a person for calculating representation, as well as for calculating a state's share of direct taxes. The Constitution also protected slavery by prohibiting Congress from outlawing the importation of slaves from foreign countries until at least 1808. Finally, the Constitution required free states to return escaped slaves captured in their boundaries.
The right to vote is essential to democracy, which is government of, by, and for the people. Writer Thomas Paine (1737809) said this in 1795 in Dissertation on the First Principles of Government: "The true and only basis of representative government is equality of rights. Every man has a right to one vote, and no more in the choice of representatives. The rich have no more right to exclude the poor from the right of voting, or of electing and being elected, then the poor have to exclude the rich. . . ."
The Constitution of 1787 failed to protect the right to vote in elections for both the House of Representatives and the Senate.
Election in the House of Representatives
Benjamin Rush (1745813) was a physician and political leader in Pennsylvania. In 1777, he published Observations on the Government of Pennsylvania. One of Rush's observations was that men of moderate wealth should have representation in one
The delegates to the Constitutional Convention designed the House of Representatives to represent free men of "middling fortunes." Article I, Section 2, says, "The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature." This meant that only people who had the right under state law to elect members to the state House of Representatives would have the right to elect members to the federal House.
Every state at the time had laws giving voting rights only to free white men. In addition, almost every state required a man either to own a certain amount of property or to pay a property or poll tax to have the right to vote. As of 1791, for example, Massachusetts required a voter to own property that was worth 60 pounds (a type of currency at the time) or that produced an annual income of 3 pounds. South Carolina required its voters to own either 50 acres of land or a town lot, or else to have paid a tax of 3 shillings (another currency) toward support of the government within six months of the election. The result of the various state requirements was that mostly free white men of moderate to great wealth would be electing the members of the nation's House of Representatives. Poor men, women, and slaves would not get to vote.
Madison, nonetheless, celebrated the constitutional provision for election of the House. Writing in The Federalist, No. 57, he said: "Who are to be the electors of the Foederal Representatives? Not the rich more than the poor; not the learned more than the ignorant; not the haughty [arrogant] heirs of distinguished names, more than the humble sons of obscure and unpropitious [unfavorable] fortune. The electors are to be the great body of the people of the United States."
To be elected to the House of Representatives, the Constitution requires only that a person be twenty-five years old, a citizen of the United States for at least seven years, and a resident of the state to be represented. Representatives serve for a term of two years, so all seats in the House are up for election every other year.
Election in the Senate
Designing Congress was not just about large states against small states, or northern states against southern states. Writing in Defence of the Constitutions of Government of the United States, John Adams said it was a matter of rich people against poor people:
It is agreed that "the end of all government is the good and ease of the people, in a secure enjoyment of their rights, without oppression;" but it must be remembered, that the rich are people as well as the poor; that they have rights as well as others; that they have as clear and as sacred a right to their large
property as others have to theirs which is smaller; that oppression to them is as possible and as wicked as to others; that stealing, robbing, cheating, are the same crimes and sins, whether committed against them or others. The rich, therefore, ought to have an effectual barrier in the constitution against being robbed, plundered, and murdered, as well as the poor; and this can never be without an independent senate. The poor should have a bulwark [protection] against the same dangers and oppressions; and this can never be without a house of representatives of the people.
The Constitution of 1787 provided that the two senators for each state would be chosen by the state legislatures instead of by popular elections. State laws generally required members of their legislatures to own a certain amount of property, usually even more than was required to vote in state elections. This meant that the state legislators who would be choosing the nation's senators would be mostly from the wealthy class of society.
The Constitution requires that to be a senator, a person must be at least thirty years old, a citizen of the United States for at least nine years, and a resident of the state to be represented. Senators are elected to serve for periods of six years. For election purposes, the senators are divided into three groups, so that approximately one-third of the seats in the Senate are up for election every two years.
Powers of Congress
Alexander Hamilton was a delegate from New York to the Constitutional Convention and would be the nation's first secretary of the treasury. The secretary of the treasury is the head of the Department of Treasury, which is the unit in the executive branch that is responsible for the nation's monetary policies.
On December 18, 1787, Hamilton published The Federalist, No. 23, which contained his defense of the need for a strong federal government. In it, Hamilton said, "The principal purposes to be answered by Union are thesehe common defence of the membershe preservation of the public peace as well against internal convulsions [disturbances] as external attackshe regulation of commerce with other nations and between the Stateshe superintendence [supervision] of our intercourse [interaction], political and commercial, with foreign countries."
The Founding Fathers were concerned that American commerce was too restricted under the Articles of Confederation. At the time of the Constitutional Convention, commerce was being regulated separately by the thirteen American states. In Vices of the Political System of the United States (as reprinted in The Founders' Constitution), James Madison wrote, "The practice of many States in restricting the commercial intercourse with other States, and putting their productions and manufactures on the same footing with those of foreign nations, though not contrary to the federal articles, is certainly adverse to the spirit of the Union...."
George Washington agreed. In a letter to Massachusetts politician James Warren on October 7, 1785 (as reprinted in The Founders' Constitution), he said, "We have abundant reason to be convinced, that the spirit for Trade which pervades these States is not to be restrained; it behooves us then to establish just principles; and this, any more than other matters of national concern, cannot be done by thirteen heads differently constructed and organized. The necessity, therefore, of a controlling power is obvious." Writing a year later to John Jay, who would be the first chief justice of the U.S. Supreme Court, Washington said, "Experience has taught us, that men will not adopt and carry into execution, measures the best calculated for their own good, without the intervention of a coercive power."
In 1787, many of the Founding Fathers felt America desperately needed such a coercive power. Great Britain, at the time, was preventing American businesses from exporting (sending) their goods for sale in the former motherland. Americans, however, were spending lots of money on goods imported from (sent from) Great Britain and its colonies. In the Continentalist in 1782, Hamilton wrote that one advantage of letting Congress control commerce with other nations would be to help America enjoy a better balance of trade. By taxing or restricting imports from Great Britain, America could pressure Great Britain to allow more commerce to come from America.
Tax revenue was another benefit to be obtained from national regulation of commerce, according to Hamilton. This was especially attractive because America still had large debts from the American Revolution (17753). Hamilton wrote:
No mode can be so convenient as a source of revenue to the United States. It is agreed that imposts [taxes] on trade, when not immoderate [too large], or improperly laid, is one of the most eligible species [types] of taxation. They fall in a great measure upon articles not of absolute necessity, and being partly transferred to the price of the commodity [object of commerce], are so far imperceptibly [unknowingly] paid by the consumer. It is therefore that mode which may be exercised by the foederal government with least exception or disgust.
At the Constitutional Convention, the delegates debated the wisdom of giving Congress the power to regulate commerce. The northern states, which had manufacturing businesses being restricted by Great Britain's policies, tended to favor giving the power to Congress. The southern states, especially cotton-producing South Carolina and Georgia, were not as interested in the idea. They were not having trouble exporting cotton, a raw material, to other countries. They also did not want Congress to be able to outlaw or regulate the slave trade.
Writing in The Federalist, No. 42, in January 1788, Madison argued that Congress needed more than the power to regulate commerce with foreign nations. He said it also needed power to regulate commerce between the individual states. Otherwise, states that imported goods from foreign countries could add further taxes to ship the goods to other states.
The northern states got their commercial wishes in the Constitution. The powers of Congress under Article I, Section 8, include the power to tax imports, regulate commerce between states and with foreign nations and Indian tribes, coin and regulate money, punish counterfeiting (the making of fake money), and patent, or protect, scientific inventions. In exchange, the southern states got a promise in the Constitution that Congress would not outlaw the slave trade before 1808. (Many of the Founding Fathers, including Thomas Jefferson [1743826] and Patrick Henry [1736799], knew slavery was wrong and had to be outlawed eventually, even though they owned slaves, too.)
The Founding Fathers wanted a strong army and navy for America. They were not concerned only about defending America from attack by foreign nations and Native Americans. American commerce relied heavily on water transportation, and a strong navy was important for defending commercial vessels from piracy, or robbery on the high seas.
The Founding Fathers also wanted a strong army for crushing protests and rebellions by American citizens. Shays's Rebellion of 1780 in Massachusetts was one of the most famous. As told by Howard Zinn in A People's History of the United States, farmers in western Massachusetts were upset with the state legislature in
Local authorities began to put farmers in jail and to seize their cattle and lands for failure to pay their debts. Farmers responded by gathering in groups of hundreds, marching to county courthouses, and forcing judges to delay trials until the farmers could go to Boston to seek relief from the legislature. The farmers sometimes released their jailed neighbors from prison.
On September 19, 1780, eleven leaders of the rebellion were charged in the Supreme Judicial Court in Boston with violating the law. This is when Shays entered the story, organizing a group of protesters to march to Springfield, Massachusetts, where the court planned to try the leaders for their crimes. The state rallied its militia to confront the protesters, resulting in fighting and bloodshed that lasted into the winter, when the outnumbered farmers gave up. Many were put on trial and imprisoned, and some were hung for the rebellion. Shays escaped to Vermont, returning to Massachusetts only after being pardoned, or officially forgiven, for his crimes.
When the Constitutional Convention met in the summer of 1787, many delegates, including Alexander Hamilton, wanted to give the federal government strong military powers. Writing in The Federalist, Hamilton referred to the danger of Shays's Rebellion.
In 1776, the authors of the American Declaration of Independence had complained of the tendency of British king George III (1738820; reigned 1760820) to keep standing armies in America even during times of peace. The colonists felt these armies were there to deprive them of their freedoms, or at least to prevent them from protesting or rebelling against the British government. Opposition to standing armies was a large part of opposition to the Constitution during the fall and winter of 17878, when state conventions were considering whether to ratify it. Writing in October 1787, a man who called himself a "Democratic Federalist" said that standing federal armies were entirely unnecessary because the state militias could do the job of defending a region from unexpected attack.
Hamilton disagreed. He argued that once people decided to create a government for common defense, they had to give it all powers necessary for defense. Hamilton wrote in The Federalist, No. 23, "These powers ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies [emergencies], or the correspondent extent & variety of the means which may be necessary to satisfy them."
Influential philosophers had advised against giving all power over the military to one branch of government. In Wealth of Nations in 1776 (as reprinted in The Founders' Constitution), for instance, Scottish economist Adam Smith (1723790) reminded readers how British statesman Oliver Cromwell (1599658) used the military to run the British Parliament out of office in the seventeenth century. The delegates took this advice to heart, proposing to separate the power to create and fund the military and the power to declare war from the power to operate the military. Under Article I, Section 8, of the Constitution, Congress has all of these powers except the power to operate the military. The president is the one who operates the military as commander in chief under Article II, Section 2.
A government needs money to operate. Taxation is how a government raises most of its money. Congress's powers of taxation under the Articles of Confederation were not very strong. It could not collect a tax on goods imported into the country. It could not collect taxes directly from the citizens, but instead had to ask the states to contribute their share of the federal government's expenses. These taxes, called requisitions, were often ignored by the states, according to James Madison in his Preface to Debates in the Convention of 1787 (as reprinted in The Founders' Constitution):
It was seen that the public debt rendered so sacred by the cause in which it had been incurred [the Revolutionary War] remained without any provision for its payment. The reiterated [repeated] and elaborate efforts of Cong. to procure from the States a more adequate power to raise the means of payment had failed. The effect of ordinary requisitions of Congress had only displayed the inefficiency of the [authority] making them; none of the States having duly [timely] complied with them, some having failed altogether or nearly so; and in one instance, that of N. Jersey, a compliance was expressly refused. . . .
The Constitution of 1787 changed this. Article I, Section 8, says, "Congress shall have power . . . to lay and collect taxes, duties, imposts and excises. . . ." Duties and imposts are taxes on goods imported into the country. Excises are taxes on the manufacture, sale, or consumption of goods within the country.
The Constitution specifically forbids Congress from taxing exports. Delegates from southern states insisted on this provision. Their cotton and rice growers did not want to face an export tax to sell their crops to people in foreign countries.
The state conventions adopted the Constitution despite vocal opposition to Congress's proposed powers of taxation. Some people feared that federal taxation would prevent state governments from collecting taxes, too. A person called "Brutus" wrote (as reprinted in The Founders' Constitution) that Congress's new taxes would "include poll [voting] taxes, land taxes, excises, duties [postage] on written instruments, on every thing we eat, drink, or wear; they take hold of every species of property, and come home to every man's house and packet. These are often so oppressive, as to grind the face of the poor, and render the lives of the common people a burden to them." (People writing public letters in the eighteenth century often used fake names to protect themselves from being punished for speaking harshly of the government.)
At Connecticut's ratifying convention in 1788, delegate Oliver Ellsworth (1745804) argued (as reprinted in The Founders' Constitution) that Congress would not, as Brutus feared, use its tax powers to oppress the states: "They [Congress] are the head, and will take care that the members do not perish."
Other powers
The Constitution gives many other powers to Congress. Congress alone can admit new states into the United States. Congress also has sole authority to make rules and regulations for American territories that are not states, such as Puerto Rico and Guam (which have been territories since America captured them during the Spanish-American War in 1898).
If it wants to change the Constitution, Congress, by a two-thirds vote in each chamber, can propose amendments. Amendments can also be proposed by two-thirds of the state legislatures. For a proposed amendment to become part of the Constitution, three-fourths of either the state legislatures or state conventions must ratify it. Congress gets to make the determination between state legislatures or conventions.
Necessary and Proper Clause
The last paragraph of Article I, Section 8, of the Constitution contains a highly controversial provision called the Necessary and Proper Clause. It gives Congress the power "to make all laws which shall be necessary and proper for carrying into execution . . . all other power vested by this constitution in the government of the United States, or in any department or officer thereof."
When the state conventions were debating whether to ratify the Constitution, the Necessary and Proper Clause received a lot of newspaper coverage. Writing that fall of 1787, a person called the "Centinel" argued that the clause would allow Congress to strike down any state laws it did not like. Another person, using the name "An Old Whig," called the clause an "undefined, unbounded and immense power." (The term whig referred to a political party in England that generally supported democratic reform of English government to make it more representative of the people's interests.) Writing in October, "Brutus" said, "The powers given by this article are very general and comprehensive, and it may receive a construction [interpretation] to justify the passing almost any law. A power to make all laws . . . may, for ought I know, be exercised in such a manner as entirely to abolish the state legislatures."
Alexander Hamilton wrote The Federalist, No. 33, to address these fears. Hamilton said the clause had been "held up to the people, in all the exaggerated colours of misrepresentation . . . as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane." Hamilton argued that in reality, the clause added nothing to the Constitution. Even without it, he said, Congress would have an implied power to make any law it needed to carry out its specific powers or those of the rest of the government. Three years later, in 1791, Hamilton would argue for a different interpretation of the clause as secretary of the treasury under president George Washington, an interpretation that would give Congress tremendous power. (See chapter 4, "Changes in the Legislative Branch.")
For More Information
Beard, Charles A. An Economic Interpretation of the Constitution of the United States. New York: Macmillan, 1935.
Kelly, Alfred H., and Winfred A. Harbison. The American Constitution: Its Origins and Development. 5th ed. New York: W. W. Norton & Co., 1976.
Kurland, Philip B., and Ralph Lerner. The Founders' Constitution. 5 vols. Indianapolis: Liberty Fund, 1987.
Levy, Leonard W. Original Intent and the Framers' Constitution. New York: Macmillan, 1988.
Moran, Thomas Francis. The Rise and Development of the Bicameral System in America. Baltimore: The Johns Hopkins Press, 1895.
Pole, J. R. Political Representation in England and the Origins of the American Republic. London: Macmillan, 1966.
Roelofs, H. Mark. The Poverty of American Politics. 2nd ed. Philadelphia: Temple University Press, 1998.
Volkomer, Walter E. American Government. 8th ed. Upper Saddle River, NJ: Prentice Hall, 1998.
Wolfensberger, Donald R. Congress and the People. Washington, DC, and Baltimore: Woodrow Wilson Center Press and Johns Hopkins University Press, 2000.
Zinn, Howard. A People's History of the United States. New York: HarperCollins, 2003.
Changes in the Legislative Branch (Checks and Balances: Three Branches of American Government)
- The Sedition Act of 1798 and the Espionage Act of 1917
- The Interstate Commerce Clause
- Popular election to the Senate: the Seventeenth Amendment
- Eighteenth Amendment: Prohibition
- For More Information
Congress is the legislative branch of the federal government, the branch that makes the laws. The men who wrote the Constitution at a federal convention in summer 1787 created Congress to promote American commerce (business), protect property, and provide a strong military. (See chapter 3, "Constitutional Role of the Legislative Branch.") According to Howard Zinn in A People's History of the United States, by protecting property and promoting commerce, the Constitution did "enough for small property owners, for middle-income mechanics [skilled workers] and farmers, to build a broad base of support."
Changes in the powers of Congress since 1787 have had two main themes. One is the expansion of power through the interpretation of Congress's role under the Constitution. The other involves efforts by the American people to drive democracy, which means government of, by, and for all people, into the Constitution.
The Bill of Rights
A bill of rights is a statement of the basic rights that citizens have in a society. When the Constitutional Convention began in May 1787, each of the thirteen American states had some kind of bill of rights in its constitution. The idea of putting a bill of rights into the federal constitution, however, did not come up until near the end of the convention in September. Delegates George Mason (1725792) of Virginia and Elbridge Gerry (1744814) of Massachusetts supported the idea, but voting by states, the delegates defeated it ten votes to zero.
After finishing the Constitution, the convention presented it to Congress, which was America's governing body under the Articles of Confederation. Congress presented the Constitution to the states, whose representatives faced the question of whether to ratify, or adopt, it as the new framework for American government. This issue divided the white men of the country into two main groups. The Federalists, led by New York delegate Alexander Hamilton (1757804) and Virginia delegate James Madison (1751836), favored ratification. The Federalists called their opponents, those who were against ratification, Antifederalists.
Generally speaking, Federalists favored a strong national government, while Antifederalists wanted strong state governments. The Antifederalists feared that the Constitution would weaken state governments, possibly bringing statehood to an end. Men who lived near the Atlantic coast, where commerce was important, were mostly Federalists. Men who lived inside the country, on farms and the frontier, were mostly Antifederalists. (Women generally could not participate in political affairs then, so their views are not well known.)
To vote on whether to ratify the Constitution, states had to form their own conventions. They did so by having the people who could vote, mostly white men who owned a certain amount of property, elect delegates (representatives). State voting districts at the time unfairly gave greater representation to coastal areas than to the interior farms and frontiers. The combination of property requirements for voting and unfair representation of the coastal areas gave the Federalists a strong voice in the state conventions. According to Alfred H. Kelly and Winfred A. Harbison in The American Constitution, "Probably not more than three per cent of the male population actually balloted [voted] upon the choice of delegates to the various state conventions."
Despite their advantage, the Federalists were not assured of victory in the struggle for ratification. According to the Constitution, nine state conventions had to approve it for it to become law between those states. Seven states ratified the Constitution easily, but the vote was close in Massachusetts, New Hampshire, New York, and Virginia. (North Carolina and Rhode Island did not ratify the Constitution until after the new federal government was in operation.)
The absence of a bill of rights in the proposed Constitution led to much debate. The Federalists tried to convince the Antifederalists that a bill of rights was unnecessary because the federal government's power was limited under the Constitution. They also said that citizens' rights were inferred in the Constitution, meaning they were understood to be there without specifically being mentioned.
Antifederalists disagreed. In a letter to James Madison in December 1787 (as reprinted in The Founders' Constitution), fellow Virginia politician Thomas Jefferson (1743826) said, "A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just [fair] government should refuse, or rest on inference."
The Federalists proposed a compromise. They promised that if the Antifederalists would vote for ratification, they would support amendment of the Constitution afterwards to include a bill of rights. This worked, and by the end of June 1788, ten states had ratified the Constitution. In their ratifying documents, Massachusetts and other states included a description of the rights they wanted to see in a federal bill of rights.
In 1789, Congressman James Madison of Virginia took responsibility for turning the states' suggestions into proposed constitutional amendments. His goal, as quoted in The Founders' Constitution, was "to satisfy the public mind that their liberties will be perpetual [ongoing], and this without endangering any part of the constitution." Madison ultimately crafted twelve amendments, and by 1791 the states had ratified ten. These first ten amendments came to be called the Bill of Rights. Many of them contain limitations on the power of Congress.
The First Amendment
The First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging [lessening] the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition to Government for a redress [remedy] of grievances."
This Amendment contains some of America's most cherished freedoms, including the freedoms of religion and speech. The freedom of religion has come to mean that Americans can worship or not worship as they choose. In 1789, however, the amendment was designed to keep Congress out of religion in order to leave religion to the states. The Massachusetts Constitution of 1780, for example, gave the state legislature power to require people to attend public education on God and morality. The Virginia Constitution, in contrast, protected religious freedom, at least for Christians.
Freedom of speech is the right to speak and write without restriction. The freedom, however, is not absolute. According to the U.S. Supreme Court, the freedom of speech prevents the government from banning speech or writings. The government may, however, punish a person for speech or writings that injure another person or the government. For example, the government cannot stop a person from saying or printing something false about another person. But if the person makes the statement knowing it is false, the injured person can sue for damages. The person who made the false statement cannot escape responsibility by saying he or she was simply exercising the freedom of speech.
Congress, however, is allowed to regulate the time, place, and manner of speech, as long as its regulation is reasonable. Congress can also punish speech that it considers harmful. (See sidebar, "The Sedition Act of 1798 and the Espionage Act of 1917.") Some Americans believe Congress should be able to punish harmful speech. Others believe that the power to punish is the power to prevent speech in the first place, and that what is harmful differs from person to person.
The Second Amendment
The Second Amendment says, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The reason for this Amendment was to make sure people could have weapons for protection. Americans wanted to protect themselves not only from attack, but also from injustice by an unfair government. They even wanted the ability to overthrow the government if necessary, as the American colonists had overthrown Great Britain in the American Revolution (17753).
Today the Second Amendment is primarily used to defend the right to have weapons for self-protection and for hunting and sportsmanship. Overthrowing the federal government with guns and rifles is unlikely when the government is armed with nuclear weapons. Despite the original purpose of the Second Amendment, the federal government is unlikely to allow people to have nuclear weapons for overthrowing the government if necessary, and many Americans would agree with such a restriction.
The Eighth Amendment
The Eighth Amendment says, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This Amendment limits the punishment Congress can impose in its criminal laws.
The Eighth Amendment is part of the national debate over capital punishment, or the death penalty. Many people think the death penalty is cruel, is used most often to execute minorities, and sometimes results in the execution of innocent people. The U.S. Supreme Court, however, has ruled that the death penalty does not violate the Eighth Amendment because the death penalty was widely accepted when America adopted the Bill of Rights in 1791 and has continued to be acceptable to most Americans. According to a Harris Poll in January 2004, more than two-thirds of Americans support the death penalty. Some people who support the death penalty believe it discourages people from committing murder. Whether or not this is true, some people also believe death is a just and fair punishment for killing another person.
The Tenth Amendment
The Tenth Amendment says that any power not specifically given to the federal government is reserved for the state governments and for the people of the nation. Adoption of this amendment increased the importance of defining Congress's specific powers under the Constitution. Since 1789, when the federal government began to operate under the Constitution, Congress's powers have grown tremendously, especially under the Necessary and Proper Clause and the Interstate Commerce Clause of the Constitution.
The Necessary and Proper Clause: McCulloch v. Maryland
Article I, Section 8, of the Constitution gives Congress the general power "to make all laws which shall be necessary and proper for carrying into execution" the specific powers of Congress and the federal government. This is called the Necessary and Proper Clause.
The Necessary and Proper Clause was a source of great controversy during ratification of the Constitution. Antifederalists feared it would give Congress unlimited authority to do anything it wanted to do. They felt that listing the specific powers of Congress should be enough.
Federalist Alexander Hamilton responded to these concerns in an interesting way. Writing in 1788, he said that in reality, the Necessary and Proper Clause did not add anything to the Constitution. It only clarified that when Congress has a specific power, it can do anything it needs to do to exercise that power. Hamilton said, however, that it was important to include the clause in the Constitution so that people would not try to restrict Congress's specific powers.
Interpretation of the Necessary and Proper Clause became important in 1791, in the middle of President George Washington's (1732799; served 17897) first term in office. Alexander Hamilton was then secretary of the treasury under Washington. The secretary of the treasury is the head of the Department of the Treasury, which is the office in the executive branch that governs the nation's monetary policies.
According to Kelly and Harbison, Hamilton "had a strong conviction that control of government should be lodged in the hands of the manufacturing, commercial, and landed aristocracies. Hamilton therefore favored an efficient, coercive, and highly centralized state [national government], which would foster commerce, manufacturing, and capitalistic development." By coercive, Kelly and Harbison meant that Hamilton wanted the federal government to have power to impose national economic plans on the states. To reach this goal, Hamilton spent much time from 1790 to 1791 devising a financial, or monetary, plan for the federal government. One of Hamilton's proposals was to ask Congress to open a national bank.
Controversy erupted in the federal government. Nowhere did the Constitution specifically give Congress the power to open a bank. President Washington asked Hamilton and Secretary of State Thomas Jefferson to give him written opinions on whether Congress could open a bank under any of its general powers, including its power under the Necessary and Proper Clause.
Jefferson submitted his opinion on February 15, 1791. He said Congress lacked the power to open a national bank. Jefferson focused on the word "necessary" in the Necessary and Proper Clause. He argued that Congress could exercise its specific powers, such as imposing taxes, borrowing money, paying national debts, and regulating commerce, without opening a national bank. A national bank, therefore, was not necessary.
Hamilton responded to Jefferson eight days later. He wrote that Jefferson's understanding of the word "necessary" was too narrow. Hamilton said the word necessary could mean just "useful." Since a national bank would be useful for exercising Congress's specific powers, it was permitted by the Constitution. Hamilton won the argument, and Congress opened the Bank of the United States with branches throughout the country.
The controversy, however, was not over. Thanks to a poor economy and conflict with state banks, the Bank of the United
When the Baltimore branch violated the tax law, Maryland sued the branch manager, James W. McCulloch, in county court. The case, called McCulloch v. Maryland, went all the way to the U.S. Supreme Court. There, the Court had to decide whether Congress had the power to open a national bank.
On March 6, 1819, Chief Justice John Marshall (1755835) announced the Court's decision. He said Congress had implied power under the Necessary and Proper Clause to open a national bank, even though it did not have specific power to do so. Marshall said that "necessary and proper" did not mean "absolutely indispensable." Instead, when Congress has a specific power under the Constitution, the Necessary and Proper Clause lets it do anything that is "appropriate" for exercising that power. Marshall's written decision echoed Hamilton's opinion to Washington of twenty-eight years earlier. Every associate justice on the Supreme Court agreed with the decision, which strengthened Congress's powers of legislation.
The Interstate Commerce Clause
Commerce means the transportation and sale of goods and services. Interstate commerce is commerce between two or more states, and foreign commerce is commerce with foreign states or nations. When the constitutional convention met in 1787, Congress did not have the power to regulate interstate or foreign commerce. Instead, the thirteen American states each had their own commercial laws. To raise money, states often passed laws to tax goods brought from other states. At the same time, Great Britain passed laws banning many American products from that empire, which hurt producers of those goods in America.
The men who wrote the Constitution wanted to give Congress the power to deal with such situations. They did so with the Commerce Clause in Article I, Section 8: "The Congress shall have power . . . to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."
The portion of this clause relating to commerce among the several states is called the Interstate Commerce Clause. For the first century after the foundation of the new government in 1789, Congress used this power mostly to prevent the states from restricting interstate commerce.
By the late 1800s, commerce in America had grown greatly thanks to the Industrial Revolution. This was a period in which machines, steam power, electricity, and oil replaced human skill and animal power in the production of goods. The industrial boom led to greater regulation of commerce by Congress, which resulted in an increase in the number of cases requiring the U.S. Supreme Court to interpret Congress's power under the Interstate Commerce Clause.
In an 1824 case called Gibbons v. Ogden, Chief Justice Marshall said the Interstate Commerce Clause gave Congress complete power over commerce that "concerns more than one state," but probably not over commerce that concerns "the completely interior traffic of a state."
In the first half of the 1900s, the U.S. Supreme Court changed this interpretation, greatly expanding Congress's power under the Interstate Commerce Clause. The Court said that if a particular business activity can have a substantial effect on interstate commerce, Congress may regulate it, even if the activity itself is not part of interstate commerce. This meant, for example, that Congress could regulate the price of train trips inside a state (Houston, E. & W. Tex. Ry. v. United States), or the production of wheat that would be used entirely on the producing farm instead of sold in interstate commerce (Wickard v. Filburn).
Congress's power under this expanded interpretation of the Interstate Commerce Clause has allowed it to pass laws that do not deal strictly with commerce. Environmental laws, such as the Clean Air Act, are based on the power to regulate businesses in interstate commerce. Most federal criminal laws are based upon either the effect a crime has on interstate commerce, or upon the use of tools or "instrumentalities" of interstate commerce, such as the post offices, telephone companies, and interstate highways, for committing a crime.
Civil rights legislation
Even civil rights legislation is based on the Interstate Commerce Clause. Civil rights are the basic rights a citizen has in society. Some civil rights laws are written to prevent discrimination against, or unfair treatment of, people on the basis of their race, color, gender, or other features.
Congress first tried to prevent race discrimination after the states in 1868 adopted the Fourteenth Amendment, which made discrimination by the states illegal. Congress used the Fourteenth Amendment to pass the Civil Rights Act of 1875. The Act made discrimination illegal in places of public accommodation, such as inns and theaters. The U.S. Supreme Court, however, struck down the Act in 1883. It said the Fourteenth Amendment only prohibited discrimination by states, not by private persons in their businesses.
In 1964, Congress passed the Civil Rights Act. This Act also made discrimination illegal in public places, such as motels and restaurants. Congress, however, said it passed the Act using its power under the Interstate Commerce Clause. That year in Heart of Atlanta Motel v. United States and Katzenbach v. McClung, the U.S. Supreme Court ruled that the Civil Rights Act of 1964 was lawful under the Constitution. It
Two justices, William O. Douglas (1898980) and Arthur J. Goldberg (1908990), expressed some disappointment with the Court's decisions. They agreed that the Civil Rights Act of 1964 was lawful. But they felt it should be lawful as an exercise of congressional power under the Fourteenth Amendment, not just under the Interstate Commerce Clause. Justice Goldberg expressed his belief that "the Fourteenth Amendment guarantees to all Americans the constitutional right
Income tax: the Sixteenth Amendment
Income tax is a tax collected out of the money that a person or business earns in a year. Income tax has become the federal government's primary source of funds for its operations. When the government began to operate under the Constitution in 1789, however, it did not collect any income tax. Into the early 1900s, its largest source of tax revenue was a tax on goods imported to America from other countries.
During the American Civil War (18615), Congress passed an income tax to help pay for the war. The tax was unpopular and so it was allowed to expire in 1872. In 1881, the U.S. Supreme Court had to decide a case that challenged whether the income tax had been lawful under the Constitution. The Court decided that the tax had been lawful under Article I, Section 8, of the Constitution, which gives Congress the power "to lay and collect taxes."
In 1894, Congress was controlled by the Democratic Party, a political party that tended to find support in the laborers and less wealthy classes of society. Because the economy was not doing well, people were not buying as many imported goods as they had in good times, so the federal government was not collecting as much money as it needed from its import taxes. At the same time, the Industrial Revolution had produced a class of Americans getting wealthy on money earned from various industries.
These factors led Congress to enact an income tax as part of the Wilson-Gorman Tariff Act of 1894. The law imposed a tax of 2 percent on a person's income. It also contained an exemption so that people who earned less than $4,000 a year would not have to pay any income tax.
The following year, the U.S. Supreme Court heard two cases challenging the income tax portions of the Act. Lawyers for the challenging party argued that the income tax violated the Constitution. Under Article I, Section 9, Congress is forbidden to pass direct taxes that are not in proportion to the population of the states. The delegates to the Constitutional Convention never defined what such a tax would be, but the lawyers arguing the case before the Supreme Court, Joseph Choate (1832917) and George Edmunds (1828919), said an income tax on rents earned from land violated the restriction. According to The American Constitution, Edmunds also argued that allowing poor people to use Congress to tax rich people would lead to "communism, anarchy, and then, the ever following despotism [tyranny]."
Going against its decision from 1881, the U.S. Supreme Court ruled that the entire income tax portion of the Act violated the Constitution. Justice Stephen J. Field (1816899) wrote an opinion concurring (agreeing) with the Court's decision. In it, he said, "The present assault on capital [money] is but the beginning. It will be but the stepping stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich; a war constantly growing in intensity and bitterness."
Interest in a federal income tax did not go away, and the issue came up again in Congress in 1909. In April that year, the Senate was considering the country's tariff rates, taxes on imports. U.S. senator Joseph W. Bailey (1862929) of Texas proposed to add to the tariff law another income tax law like the one from 1894. Bailey believed the Supreme Court's decision that the 1894 tariff act was illegal was wrong, and he wanted the Court to have another chance to consider the question.
Senators who were opposed to an income tax, including Nelson W. Aldrich (1841915) of Rhode Island, held meetings with President William Howard Taft (1857930; served 19093) to develop a strategy. The plan they came up with was to have President Taft ask Congress to propose a constitutional amendment for making income taxes lawful. To succeed, a constitutional amendment would have to be ratified by three-fourths of the state legislatures. Taft and Aldrich did not think the legislatures would ratify such an amendment, so the proposal was really a clever plan for killing the idea of passing a federal income tax. If the amendment failed to be ratified, Congress would not dare pass an income tax law.
The plan failed. After Congress proposed the Sixteenth Amendment in July, state legislatures began to approve it. By February 25, 1913, thirty-eight states had ratified it, officially making it part of the Constitution. The Amendment says, "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."
Popular election to the Senate: the Seventeenth Amendment
Democracy is a form of government in which the power of government rests with the people. According to Kelly and Harbison, "the men who drafted the Constitution had known little and believed less of the dogma [principle] of democracy."
Most of the Founding Fathers believed, instead, that white men with property should control government. To accomplish this, they wrote the Constitution of 1787 to enable the election of members of Congress in two ways: Members of the House of Representatives would be elected by people who had the right to participate in state elections, and members of the Senate would be selected by state legislatures. In general, state laws said that only free white men who owned a certain amount of property could participate in state elections and be elected to state legislatures. This meant that the men choosing the members of both the House and the Senate would come primarily from that social class. (See chapter 3, "Constitutional Role of the Legislative Branch.")
Beginning in 1789, the people of France overthrew that nation's monarchy, a government under which power is held by someone who inherits power by birth or takes it by force, such as a king or queen. Although the revolution was violent and deadly, it spread ideas of democracy to other European nations and America.
The spirit of democracy grew in America during the 1800s. Evidence of this came between 1816 and 1821, when the new states of Alabama, Illinois, Indiana, Mississippi, and Missouri adopted constitutions that gave every free white man the right to vote and to be elected to state government, regardless of property. By the time of the Civil War, most free white men in the country enjoyed suffrage, the right to vote. Adoption of the Fifteenth Amendment in 1870 extended the right to vote to all American men regardless of race or color. While many states continued to use poll, or property, taxes to prevent poor men (especially African Americans) from voting, the movement toward democracy continued.
The growth of democracy led to interest in amending the Constitution to provide for popular election of the Senate instead of selection by the state legislatures. The House of Representatives proposed such a constitutional amendment as early as 1828, and did so again in 1893, 1894, 1898, 1900, and 1902. Fearful of losing their power, the members of the Senate did not support the proposals.
Frustrated with the Senate, many states passed laws at the beginning of the 1900s to hold primary elections for choosing senators. Under these laws, state legislatures were pressured to select the senators who had been chosen by the voters during the primaries. This led both chambers of Congress to propose the Seventeenth Amendment in May 1912. The Amendment says senators are to be elected "by the people," and it became effective May 1913 after thirty-six states ratified it.
Election of senators became even more democratic after the adoption of the Nineteenth, Twenty-fourth, and Twenty-sixth Amendments. The Nineteenth and Twenty-sixth Amendments extended suffrage to women and to young people at least eighteen years old. The Twenty-fourth Amendment made it illegal for the United States or any state to charge a poll tax for participating in presidential and congressional elections.
The Twenty-seventh Amendment
The Twenty-seventh Amendment says that if Congress passes a law changing the salaries for senators or representatives, the law cannot take effect until after at least one House election passes. The purpose of the amendment is to prevent representatives from giving themselves pay raises while in office. It became part of the Constitution in May 1992.
The amendment is not very important in the overall scheme of the Constitution, but the story of its adoption is, because it was one of the original twelve amendments crafted by James Madison and proposed by Congress in 1789. By 1791, the states had ratified only ten of the twelve. Those ten came to be known as the Bill of Rights.
Six out of the fourteen American states had approved the congressional pay amendment by 1791, but it needed eleven states (three-fourths of fourteen) to become law. So the country assumed the amendment was dead. Ohio, however, ratified it in 1873. Then in the 1980s, a congressional aide to a Texas legislator discovered the amendment, which led to a campaign for its adoption. By May 1992, over three-fourths of America's fifty states had approved it, which officially made it part of the Constitution as the Twenty-seventh Amendment.
The Amendment caused a controversy in the field of constitutional law. Some scholars said that an amendment proposed by Congress in 1789 should not be capable of ratification over two hundred years later. The Constitution, however, sets no time limit for ratification of an amendment. If an amendment as proposed by Congress or the state legislatures does not have a time limit in it, it may be able to last forever until finally adopted.
The future
Individual senators and representatives propose many constitutional amendments each year. For an amendment to become law, it must first pass both chambers of Congress by a two-thirds vote or be proposed by two-thirds of the state legislatures. It then must be ratified by three-fourths of the states, either in their legislatures or in state conventions. (Congress gets to decide whether ratification is by legislature or convention.) Amendments that individual senators and representatives propose rarely pass one chamber of Congress, and almost never pass both chambers to be presented to the states for consideration. Similarly, amendments almost never get the two-thirds support needed from state legislatures to be proposed for consideration by the people.
Americans have expressed interest in a number of amendments relating to the powers of Congress. Two of the more popular proposals are for limiting how long a person can serve in Congress, and for requiring Congress to balance the federal budget each year.
Term limits
Under the Twenty-second Amendment, a person cannot be elected president more than twice. The Constitution does not, however, contain term limits for senators and representatives. J. Strom Thurmond (1902003), who served as a senator from South Carolina for forty-eight years, holds the record for longest service in Congress as of 2004. Thurmond retired from the Senate in January 2003 at age 100 and died that June.
Some Americans think term limits are unfair, because people should be able to elect whomever they want to office. Many Americans, however, want a constitutional amendment to
In 1994, many Republicans running for the House of Representatives used a campaign strategy that they called the "Contract with America." It was a list of promises to try to change government if they won their elections. One of their promises was to propose a constitutional amendment for imposing term limits on members of Congress. Although Republicans took control of the House with heavy wins in the November 1994 elections, the House failed to pass a term limits amendment.
Twenty state legislatures took matters into their own hands by passing state laws imposing term limits on federal senators and representatives from their states. In 1995, however, the U.S. Supreme Court struck down these laws. In U.S. Term Limits, Inc. v. Thornton, the Court said states lack power under the Constitution to impose term limits on federal legislators. Instead, the nation will have to adopt a constitutional amendment if it wants congressional term limits. (In the meantime, many states have imposed term limits on state legislators, which the states clearly have power to do.)
Balanced budget amendment
A budget is a plan for how the federal government will raise and spend money each year. When the government raises more money than it spends, it is operating at a surplus. When it spends more money than it raises, it is operating at a deficit.
Under the Constitution, Congress is the branch with the power to raise money and distribute it for spending. This means that Congress has the ultimate authority to make the federal budget.
A topic that arises periodically in Congress is the balanced budget amendment. This is an amendment that would require Congress to balance the budget each year to eliminate federal deficits. In other words, the federal government would have to operate each year under a budget with a surplus or at least without a deficit.
People who support a balanced budget amendment, such as members of the Concord Coalition, a nonpartisan, grassroots organization in favor of fiscal responsibility, say it would reduce wasteful spending by the federal government and make Americans more prosperous. People who oppose such an amendment, such as members of the Center on Budget and Policy Priorities, a group that works at the federal and state levels on fiscal policy and public programs that affect citizens with low and moderate incomes, say it would prevent the government from helping the American economy improve during bad times.
A proposed balanced budget amendment passed in the House in 1995, and was just one vote short of passing in the Senate in 1997. In February 2003, U.S. representative Ernest Istook (1950 of Oklahoma, a Republican, introduced another balanced budget amendment. At the time, the federal government was expecting deficits of $304 billion for 2003 and another $307 billion for 2004. As of 2005, however, the amendment has not been passed for presentation to the states for ratification.
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Wickard v. Filburn, 317 U.S. 111 (1942).
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Key Positions in the Legislative Branch (Checks and Balances: Three Branches of American Government)
Congress is the legislative branch of the U.S. government, the branch that passes laws. It has two chambers, the House of Representatives and the Senate. When Congress votes on a bill, or proposed law, each representative, or member, in the House and each senator in the Senate gets one vote. A bill must pass both chambers by a simple majority to go to the president of the United States for consideration. If the president signs it, it becomes law. If the president vetoes, or rejects, a bill, Congress can still make it a law if two-thirds of the representatives and two-thirds of the senators vote to override the president's veto.
House of Representatives
The House of Representatives has 435 members. The fifty states in the United States are divided into 435 congressional districts, and one member is elected for each district. Besides the job of representative, key positions and organizations in the House include Speaker of the House, majority leader, minority leader, whips, the Democratic Caucus, the Republican Conference, and congressional staff.
Article I, Section 2, of the U.S. Constitution governs the election of representatives to the House. The Constitution requires that people who want to be elected to the House be at least twenty-five years old, live in the state from which they are elected, and be a citizen of the United States for at least seven years.
Elections to the House take place once every two years, including the year of presidential elections (held once every four years) and two years after that. Elections are held on the first Tuesday after the first Monday in November.
After being elected in November, a representative joins the House when it begins its next session the following January. The most visible work a representative does includes voting on bills to determine whether they become laws. Many laws concern how to raise money through taxes and how to spend it on government programs, such as Social Security for retired people. Other laws create rules on matters of national concern, such as controlling airline traffic, constructing interstate highways, regulating radio and television broadcasting, and preventing racial discrimination. Criminal laws define illegal behavior and the punishment for those who break them.
Voting on bills, however, is only a small part of a member's work. Committee work is a larger part of what a member does. Committees are smaller groups of representatives that handle specific government topics, such as agriculture, the federal budget, or national security. As of 2005, the House has nineteen permanent committees, called standing committees, plus many other committees and subcommittees. Working in committees is how members prepare most of the bills to be voted on in Congress.
Members also spend much of their time on casework. This is personal work to help voters from the member's district with particular problems, such as getting veteran's benefits or a tax refund. Members also spend time meeting with voters who want certain bills to become law. Generating goodwill by helping voters is an important part of getting reelected.
Two other parts of a member's day-to-day work are important to reelection. The first is meeting with lobbyists. Lobbyists are people who represent businesses or organizations that want Congress to pass certain laws. The U.S. Chamber of Commerce, for example, lobbies Congress for laws helpful to American businesses. The National Rifle Association lobbies Congress for laws protecting the right for individuals to own guns and other weapons. The people and groups who lobbyists represent donate money to help members get elected, so members make lots of time to hear their wishes.
The second task important to reelection is campaigning. Representatives face reelection every two years. This means they must begin working on a reelection campaign, or strategy, soon after getting into office. Once in, however, it is much easier to win an election. Statistics show that a representative in office, called the incumbent, has a 90 percent chance of beating an outsider who runs for the same position at election time.
Speaker of the House
The Speaker of the House is the only House leadership position specifically mentioned in the Constitution. The Constitution says, "The House of Representatives shall chuse their Speaker and other officers." The House makes this choice at the beginning of every two-year term after the Democratic Caucus and the Republican Conference each nominate one person for the position. (The Democratic Caucus and Republican Conference are House organizations for members of those political parties.) Since the whole House selects the Speaker from the two choices, the
The position of Speaker was very powerful until 1910, which marked the end of the Speakership for the combative Joseph G. Cannon (1836926), a Republican from Illinois who became Speaker in 1903. Until 1910, the Speaker got to decide which members served on and chaired, or headed, the House's various committees. The Speaker was allowed to be chair of the House Rules Committee, which makes the rules for how the House operates. This allowed the Speaker to control which bills made it from House committees to the floor for a vote.
Cannon used his power to the fullest during his term as Speaker. This upset many members who had trouble bringing their desired bills to a vote. According to Congressional Quarterly's Guide to the Congress of the United States, if a representative would get up to speak on the House floor before checking with Cannon, Cannon would ask, "For what purpose does the gentleman rise?" Cannon used his power to prevent people from speaking if he did not want them to.
In 1910, House Democrats joined with unhappy House Republicans to force the House to change the rules for the Speaker. Since then, the Speaker is not allowed to serve on the House Rules Committee, and the whole House makes appointments to its various committees.
The Speaker, however, still has special powers. The Speaker presides over House sessions, recognizing members who want to speak and interpreting House rules. The Speaker assigns new bills to committees, which can often affect whether a bill makes it back out of the committee for a vote on the floor. The Speaker also gets to appoint members to special committees, including joint committees with the Senate for resolving differences between bills in the two chambers. In these cases, the Speaker often appoints people recommended by the chair, or head, of the House committee that wrote the bill.
House majority leader
With 435 members, the House is too large for one person to run alone. As Neil MacNeil wrote in Forge of Democracy, "The House has been from the beginning such a sprawling, discordant [disagreeing] mass of men that the Speaker has had to depend on lieutenants to guide and oversee its multiple operations in its committees and on its floor, and to ensure the orderly flow of responsible legislation."
After the Speaker of the House, the House majority leader is the next most powerful person in the House. Until 1911, the Speaker of the House selected the majority leader. Since the revolt against Cannon, the majority party as a whole has appointed the majority leader. This means the Democratic Caucus appoints the majority leader when it controls the House, and the Republican Conference does so when it controls the House.
The majority leader's main job is to help the Speaker and other party leaders plan and carry out legislative strategy. In other words, they must decide what bills they want to pass and make sure those bills get into and out of the proper committees for a vote on the House floor.
For bills where the vote might be close, the majority leader works to convince undecided members to pass bills that the party likes. The job requires strong people skills and the ability to bargain. Often an undecided member will agree to vote for (or against) a particular bill in exchange for promised support on another bill. When the time comes for the House to debate, or discuss, a particular bill, the majority leader lets the Speaker know which members should be heard by the House.
House minority leader
Just as the party in charge appoints a majority leader, the party with the second most members appoints a minority leader. This happens through either the Republican Conference or the Democratic Caucus, depending on which party is the minority party. The minority leader usually ends up being the person that the minority party nominated to be Speaker of the House.
The minority party has little hope of passing bills that the majority party does not want. This means the minority party usually does not develop a legislative program of its own. Instead, led by the minority leader, the minority party develops a strategy for changing or defeating the majority party bills it does not like. The minority leader may arrange meetings with undecided members to convince them to defeat unwanted bills when the vote is going to be close.
Since the minority party loses most close votes in the House, the position of minority leader is very difficult. A 1967 study by Randall B. Ripley in Party Leaders in the House of Representatives found that out of thirteen minority leaders from 1900 to 1967, five had left the job and three had been dismissed by their party. In comparison, out of twelve majority leaders, only two had left the job and none had been dismissed. Since 1967, five representatives have served as minority leader; three left the job (one, Gerald Ford, to become vice president), one retired, and one is still serving as of 2005. Eight have served as majority leader since 1967; four became Speaker of the House, one became minority leader, one died, one retired, and one is still serving as of 2005.
Just as the Speaker gets help from the majority leader, the majority and minority leaders get help from the whips. According to Guide to the U.S. Congress of the United States, the term "whip" comes from the fox-hunting term "whipper-in," the person in charge of keeping the hounds together as they chase the fox. The British Parliament, Great Britain's legislative body, first used the term "whip" around 1770. The U.S. House of Representatives got its first official whip in 1899.
Chief, or head, whips are elected by the Democratic Caucus and the Republican Conference. In turn, the chief whips choose many assistant whips to help them with the job. The main job of
Democratic Caucus and Republican Conference
Republican and Democratic members of the House meet privately and separately in either the Republican Conference or the Democratic Caucus. The Democratic Caucus is the older of the two organizations. According to its Web site, a forerunner of the Caucus formed in April 1792 to oppose a treaty with Great Britain that it felt was bad for American sailors.
The Caucus is a forum for developing party strategy, nominating party leadership, and approving the assignment of Democrats to House committees. In the hierarchy of House leadership for the Democrats, the chair and vice chair of the Democratic Caucus come after the chief Democratic whip.
The Republican Conference serves the same function as the Democratic Caucus. Over their histories, both the Conference and the Caucus have varied in how active they have been as organized units.
Since the nineteenth century, almost all members of the House have been Democrats or Republicans. Occasionally, however, someone from a so-called third party gets elected to the House. In the twentieth century, the Progressive Party, the Prohibition Party, and the Socialist Party all succeeded in winning seats in Congress. Also, people called Independents, who are not affiliated with any political party, sometimes reach the House. As of 2005, the only Independent in the House is U.S. representative Bernard Sanders of Vermont, who was first elected to the House in 1990. Members from third parties might seek to meet with either the Republican Conference or the Democratic Caucus, depending on which party most closely resembles their own political views. The Caucus or Conference, however, may say no to such a request.
Congressional staff
Each member of Congress gets to hire staffers. Staffers help the members run their offices, both in Washington, D.C., and in their home districts. Staffers meet with lobbyists and constituents, or voters, because members do not have time for everyone who wants to see them. Staffers also research how a member's constituents, lobbyists, and other supporters feel about specific bills to help the member decide how to vote. Finally, staffers do a lot of the work that is involved in casework for constituents.
Members are restricted to a specific number of staffers, and have additional staffers working for them in the various House committees. The total cost of congressional staff throughout Congress is large. According to Mark Roelofs in The Poverty of American Politics, the cost of paying for Senate and congressional staffs, committee and subcommittee staffs, staffs of the Congressional Research Service of the Library of Congress and the Congressional Budget Office, staff of the offices of the sergeant-at-arms and the parliamentarian, and staff at the shops, discount stores, gymnasiums, TV/video facilities, restaurants, and cafeterias for Congress is over one billion dollars each year.
The Constitution says that each state gets two senators in the Senate. When Hawaii became the fiftieth state in 1959, the Senate arrived at a total of one hundred senators. Besides the job of senator, key positions and organizations in the Senate include president of the Senate, president pro tempore, majority leader, minority leader, whips, the Democratic and Republican Conferences, and staff.
Article I, Section 3, of the Constitution governs the election of senators. To be a senator, a person must be at least thirty years old, a citizen of the United States for nine years, and a resident of the state to be represented.
The Constitution requires each senator's seat to be up for election every six years. To accomplish this, all the seats in the Senate are divided into three groups. Every year that the House is up for election, about one-third of the senatorial seats are up for election. Two years later, when the whole House faces election again, the second group of senatorial seats faces election. Two years later, again during an election for the entire House, the third group of senatorial seats faces election.
Senators, like representatives, begin service in Congress the January after their November elections. Also like representatives, senators spend much of their time working in Senate committees to draft bills. Then they meet on the Senate floor to debate and vote on bills that get that far.
If both the Senate and the House pass a bill by simple majorities, the bill goes to the president of the United States for consideration. If the Senate and House pass different versions of the same bill, they form a conference committee with members from both chambers to try to work out their differences. If the committee agrees upon one version of the bill, both chambers vote on that version to pass or reject it. If passed, the joint version goes to the president for consideration.
Like representatives, senators spend much time meeting with lobbyists and doing casework for constituents. Because they face reelection just every six years, senators do not have to spend as much time campaigning as representatives do.
Senators have special duties under the Constitution that representatives do not have. Under Article II, Section 2, the president of the United States may make treaties, or formal agreements, with other nations if two-thirds of the senators concur, or agree. When the president proposes a treaty, the Senate Foreign Relations Committee holds special hearings to consider the issue and then votes on whether to recommend approval by the Senate. Two-thirds of the Senate must vote for a treaty for it to become part of American law.
The same part of the Constitution says the president may appoint ambassadors (diplomats assigned to foreign countries who represent the United States), judges of the Supreme Court, and other officers of the United States "with the advice and consent of the senate." When the president nominates a person to serve on the U.S. Supreme Court or one of the lower federal courts, the Senate Judiciary Committee holds hearings to consider the nomination. The committee then makes a recommendation to the Senate, which votes as a whole on the nomination. A simple majority of senators must vote in favor to approve a president's nomination to the Supreme Court or other federal office.
President of the Senate
The Constitution says, "The Vice-President of the United States shall be President of the senate, but shall have no vote, unless they be equally divided." The job sounds like it would be powerful. The Founding Fathers imagined that the president of the Senate would preside over all sessions of the Senate, recognizing members who wanted to speak and interpreting Senate rules. As the first vice president, however, John Adams (1735826) set an example of being a neutral participant in Senate affairs except when a tie-breaking vote was required.
From 1789 until 1952, presiding over the Senate was the vice president's main job. During this time, the vice president had an office in the Capitol building and hired staff with funds from Congress. In 1953, Vice President Richard Nixon (1913994) moved the office of the vice president from the Capitol to the White House. Nixon attended Senate sessions only at critical times, such as to cast a tie-breaking vote.
Vice presidents since Nixon have followed his example. Normally tie votes that need to be broken concern bills. They also can involve appointments of Senate officers and committees. According to the Web site of the Senate, as of early 2005, vice presidents had cast tie-breaking votes 242 times in the nation's history. The first vice president, John Adams, holds the record with twenty-nine such votes. Twelve vice presidents never had to cast a tie-breaking vote. The president of the Senate does not get to participate in floor debate on bills, even if a tie-breaking vote might be required.
President pro tempore
The Constitution requires the Senate to select a president pro tempore, a Latin term that means "for the time being." The constitutional duty of the president pro tempore, or pro tem, is to preside over the Senate when the president of the Senate cannot be there. Under a law passed in 1947, the president pro tem is in line after the vice president and Speaker of the House to replace the president of the United States if the president dies, leaves office, or is removed by impeachment.
The whole Senate elects the pro tem. Since 1945, the Senate has tended to elect the person from the majority party with the most years of continuous senatorial service. By law, once
Like the position of president of the Senate, the position of president pro tem is not very powerful. The pro tem rarely presides over the Senate, even when the president of the Senate is not there, which is most of the time. Instead, other members of the Senate appointed by the pro tem share the job of presiding over sessions. The pro tem often appoints young members who need to learn the rules of the Senate. This makes the position of pro tem largely one of honor and prestige. Unlike the president of the Senate, however, the pro tem, as an elected member, may speak in debate and vote on all bills under consideration.
Senate majority leader
With fewer members than the House of Representatives, the Senate tends to operate with less official leadership than the House. In Congressional Government in 1885, then-future president Woodrow Wilson (1856924) wrote, "No one is the Senator. No one may speak for his party as well as for himself; no one exercises the special trust of acknowledged leadership. The Senate is merely a body of individual critics."
In the 1920s, the Senate began to elect official majority and minority leaders. The majority party elects the Senate majority leader. This is the most powerful position in the Senate, more powerful than the president of the Senate and the president pro tem. It tends, however, to be less important than the position of Speaker of the House of Representatives.
The Senate majority leader has two main duties. The first is to organize the flow of bills from Senate committees onto the Senate floor for debate and consideration. The second is to meet with the Senate minority leader to arrive at unanimous consent concerning debate over bills. Unanimous consent is an agreement on how much time the Senate will spend debating a bill, and how much of that time each of the two major political parties gets.
If many people want to speak about a bill, the president of the Senate (if present) or the pro tem gives the majority leader the first chance to speak. This means the majority leader is the first person who can offer amendments, or proposed changes, to bills being considered. According to the Senate's Web site, U.S. senator Robert C. Byrd (1917 of West Virginia, who has had stints as both majority leader (19770; 19878) and minority leader (19816), called the right to speak first "the most potent weapon in the majority leader's arsenal."
The Senate majority leader also has other responsibilities. He helps develop the majority party's strategy for getting bills passed and opposing unwanted bills. This involves meeting and cutting deals with other senators, which requires strong people skills. The majority leader is the majority party's official spokesperson on legislative issues in the Senate. He also serves as the official spokesperson for the whole Senate, greeting foreign officials who visit the Senate.
Senate minority leader
The minority party in the Senate elects the Senate minority leader. Like the minority leader in the House, the Senate minority leader's main job is to plan an attack on the majority party's legislative plan. Like the majority leader, the minority leader spends lots of time meeting with other senators, cutting deals to get enough votes to prevent unwanted bills from passing. When many people want to speak about a particular bill, the minority leader gets to speak second, after the majority leader.
The Republican and Democratic senators both elect whips for their parties. The main job of the whips is to count heads to see how a vote on a bill might go and to gather party members when it is time to vote. Because the Senate is smaller than the House, Senate whips tend to be less influential than House whips. History even has instances of strong disagreements between party leaders and whips. Majority leader Mike Mansfield (1903001) of Montana, for example, clashed much with majority whip Russell B. Long (1918003) of Louisiana from 1966 until 1969, when Edward M. Kennedy (1932 of Massachusetts replaced Long as whip.
Democratic and Republican Conferences
As they do in the House, Republicans and Democrats in the Senate meet separately in groups called the Republican Conference and the Democratic Conference. The Conferences are where the parties elect their Senate leaders and whips, select senators for serving on Senate committees, and make their legislative plans and strategies. According to the Senate Web site, as of 2005, the party leader for the Democrats also serves as chair of the Democratic Conference. The Republicans elect a senator different from their floor leader to serve as chair of the Republican Conference.
Senatorial staff
Senators, like representatives, hire staffers to help them do their jobs, both as individual senators and as members of Senate committees. Because senators represent entire states instead of just districts, they get to hire more staffers than representatives do. Senators from larger states also get to hire more staffers than do senators from smaller states.
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Daily Operations of the Legislative Branch (Checks and Balances: Three Branches of American Government)
- Washington, District of Columbia
- Standing Committees in the House and Senate, 108th Congress (2003)
- Committee work
- Casework
- Campaigning
- For More Information
Congress is the legislative branch of the government of the United States of America. The legislature is the branch that makes the laws. Congress has two chambers, the House of Representatives and the Senate. The House has 435 representatives, one from each of 435 districts in the United States. The Senate has one hundred senators, two from each of America's fifty states.
Making laws is one of the things that representatives and senators do daily, but it is not the only thing. Members of Congress meet with lobbyists, people working for businesses or interest groups that want Congress to pass certain laws. They also work on the national budget, America's plan for raising money through taxes and spending it on governmental programs. Members of Congress do casework, helping voters from their districts or states with governmental problems. They also spend time campaigning for reelection. Finally, Congress operates miscellaneous offices, such as the Library of Congress, that perform services for the government.
Before Congress can propose a law, the idea for the law needs to come from somewhere. Sometimes the legislators in Congress propose the idea, and other times the president of the United States does. The legislators and the president often get their ideas from business leaders, lobbyists, and private interest groups.
Lobbyists are people who work for private interests to get favorable legislation passed in Congress. Private interests can be single entities, such as a defense contractor, or an organization that represents many people or groups, such as People For the American Way, a group that advocates a diverse democratic society. The word "lobbyist" comes from the fact that they spend a great deal of time in the halls and lobbies of Congress, meeting with members and congressional staffers. According to Walter E. Volkomer in American Government, the term was first used in Great Britain to describe journalists waiting to meet with legislators in the lobbies of the House of Commons, a chamber of the British legislature.
Many of the lobbyists in Washington, D.C., represent business interests. According to Michael Parenti in Democracy
Suppose you go to Washington and try to get at your Government. You will always find that while you are politely listened to, the men really consulted are the men who have the big stakehe big bankers, the big manufacturers, and the big masters of commerce. . . . The masters of the Government of the United States are the combined capitalists and manufacturers of the United States.
Lobbyists help members of Congress analyze how their votes on particular bills will affect their chances to be reelected. They also analyze the chances that different bills, or proposed laws, have of passing Congress. Lobbyists supply members of Congress with information concerning the subject matter of congressional bills. When congressional committees hold hearings, lobbyists testify, or speak, before the committees in an effort to influence the passing of a law their clients want.
According to Parenti, "Lobbyists make themselves so helpful that members of Congress sometimes rely on them to perform tasks normally done by congressional staffs. Lobbyists will draft legislation, write speeches, and plant stories in the press on behalf of cooperative lawmakers."
Lobbyists also help members of Congress through campaign contributions from the interest groups the lobbyists represent. Businesspeople regularly donate money to individual legislators and political parties who work for favorable legislation. Because it is illegal for corporations to donate money directly to a congressional campaign, businesses create political action committees, called PACs. Corporations use the PACs to raise money from corporate executives and other contributors for donation to members of Congress. Labor unions, which represent workers, use PACs to raise money for politicians, too.
There are many nonbusiness interest groups that hire lobbyists. Environmental, religious, and other organizations hire lobbyists to represent their general interests. Many single-issue organizations hire lobbyists, too, such as groups that support or oppose abortion and reproductive rights.
According to Jack Anderson in "Lobbyists: The Unelected Lawmakers in Washington," Speaker of the House Tip O'Neill (1912994) once said, "The grab of special interests is staggering. It will destroy the legislative process." Many Americans, like O'Neill, believe PACs allow financial contributors to have too much control over congressional policy. Others believe PACs allow people and businesses to avoid campaign finance restrictions by using complicated financial maneuvers. For example, in early 2005, U.S. representative Tom DeLay of Texas faced charges that he ran corporate contributions through the Republican Party's national organization and then back to individual races for the state House of Representatives in Texas. Under Texas law, it was illegal for corporate contributions to help state legislative candidates.
Supporters of PACs say the First Amendment freedom of speech protects the right to influence government by supporting politicians and political causes with financial contributions.
Enacting legislation
On September 29, 1789, President George Washington (1732799; served 17897) signed the first appropriations law for the United States of America. An appropriations law gives money to a particular government program. The law President Washington signed that September was only a few lines long. It provided $568,000 for government salaries, the Department of War, the Department of the Treasury, and pensions.
The lawmaking process has grown more complicated and specialized since then. It begins when a representative or senator introduces a bill in either the House or the Senate. From there, the bill is assigned to a House or Senate committee for consideration. If the committee sends the bill back to the House or Senate, the representatives or senators debate, or discuss, the bill and then vote on it.
If a bill passes both the House and the Senate by simple majorities, it goes to the president of the United States for consideration. If the president signs it, the bill becomes law. If the president vetoes, or rejects, the bill, it does not become law unless two-thirds of both chambers of Congress vote to override the president's veto.
Introduction of a bill
A bill is a draft of a proposed law. Any senator or representative can introduce a bill into his or her chamber of Congress. Senators introduce bills in the Senate by sending them to the Senate desk on the Senate floor. Representatives introduce bills by putting them in a hopper, a mahogany box, on the House floor.
The president of the United States cannot introduce bills into Congress. The president, however, is the source of many bills introduced by senators and representatives. Every year in January, the president delivers a State of the Union address to Congress. The president is required to give the address under Article II, Section 3, of the Constitution. Part of the address describes what laws the president would like Congress to enact in the upcoming year. People who work for the president in the executive branch draft many bills for these proposed laws, and members of Congress who favor the president's proposals introduce the bills into the House or Senate.
Each year, of the thousands of bills introduced in the House and the Senate, only hundreds make it through the legislative process to become laws.
Committee consideration
President Woodrow Wilson once said, "Congress in session is Congress on exhibition, whilst Congress in its committee-rooms is Congress at work," according to the authors of The Challenge of Democracy. The most important committees in both chambers of Congress are called standing committees, or permanent committees. Standing committees cover the major areas of government. Examples include the Armed Services, Foreign Relations, and Judiciary Committees in the Senate, and the Agriculture, Science, and Small Business Committees in the House. As of 2005, the Senate had sixteen standing committees, and the House had nineteen. Most standing committees have subcommittees that handle specific portions of the committee's area of concern.
Committees are like miniature chambers of Congress. Each senator and representative gets to serve on a small number of committees and subcommittees. The majority party, the political party with the most members in the House or Senate, gets to have the most members on each committee and subcommittee. The chair, or head, of each committee is always from the majority party. The minority party, the party with the second most members in each chamber, is allotted fewer members on each committee than the majority party. This way, the majority party controls each committee just as it controls the entire House or Senate.
After a bill is introduced into Congress, the next step is for it to be sent to a committee for consideration. The majority party in each chamber gets to decide which committees get which bills. Sometimes a bill is sent to more than one committee.
When a bill reaches a committee, the committee first decides whether it wants to consider it. The vast majority of bills get tabled, or set aside, dying without consideration. The rest of the bills are studied, usually by a subcommittee.
When a subcommittee gets a bill, it uses its staff to study and research the bill to decide whether Congress should enact it. If the bill is particularly important, the subcommittee might hold hearings on it. Hearings allow the subcommittee to collect testimony on whether and why Congress should enact the bill, what the bill should accomplish, and how the bill should be written. Hearings feature testimony by experts, officials from federal agencies, lobbyists, and other people interested in the legislation. The subcommittee can rewrite the bill and decide whether to report it, or send it, to the main committee for a vote.
When the main committee gets a bill back, it can conduct research and hold hearings just like the subcommittee did. Committee hearings used to be closed to the public, but are now usually open since the House changed its rules in the 1990s. A committee considers a bill line-by-line and creates a report on why the bill is important. Committee members opposed to the bill can include their concerns in the report. Then the committee votes on the bill. If the vote is against the bill, it dies in the committee. If the vote is in favor of the bill, it goes back to the House or Senate.
If a Senate committee votes in favor of a bill, the bill goes to the full Senate, where it is placed on a calendar. The Senate consider smost bills in the order in which they appear on the calendar. The leaders of the parties in the Senate, called the majority leader and minority leader, work together to arrange a time for debating the bill. They also set limitations on what kinds of amendments, or changes, senators can offer for the bill on the Senate floor. Their agreement on debate and amendments is called unanimous consent, because the entire Senate must approve it.
If a House committee votes in favor of a bill, the bill goes to the full House, where it is placed on one of various House calendars. If the bill is an appropriations bill, the House Appropriations Committee works with the Speaker of the House and the House majority leader to set the time for debate. If the bill is not an appropriations bill, the House Rules Committee gets to set the time for debate and to decide what kinds of amendments representatives can offer on the floor. The House has complicated rules for determining the order in which it considers bills from its various calendars.
Floor procedure
Debate is a chance for members of Congress to show their supporters, both voters and private interest groups, how hard they are working for them. When it is time to debate a bill, the House follows the arrangement worked out by the House Rules Committee. The House has strict rules governing who may speak on a bill and for how much time.
Debate in the Senate is not restricted as much as in the House. In fact, a senator can normally speak for as long as desired about a particular bill. This occasionally results in a filibuster, which happens when one or more senators speak for a long time so that the time for considering a bill runs out before a vote is taken. A successful filibuster kills a bill before
Beginning in 1917, the Senate adopted a cloture rule, which is a way to end a filibuster. (The word comes from the alteration of a French word meaning "closure.") Under the cloture rule as of 2005, three-fifths of the Senate, or sixty senators, can bring a filibuster to an end by voting for cloture.
When debate has ended in either the House or the Senate, the senators and representatives who are present vote on the bill under consideration. To pass one chamber, the bill must receive a simple majority of votes. This means that in the House, at least 218 of the 435 representatives must vote in favor of a bill to pass it. In the Senate, fifty-one senators (or fifty senators and the vice president of the United States) must vote in favor of a bill to pass it. When the Senate is split 50-50, the vice president of the United States gets to cast the tie-breaking vote as president of the Senate under Article I, Section 2, of the Constitution.
If only one chamber of Congress passes a bill, it dies there. If both chambers pass identical versions of the same bill, it goes to the president of the United States for consideration. If the House and Senate pass different versions of the same bill, the two bills go to a congressional conference committee.
Conference committees
When the House and Senate have different versions of the same bill, they usually work out the differences informally. Often the chairs, or heads, of the committees that wrote the bills meet to agree on a single, identical version.
If the bill is very important or controversial, meaning there is a lot of disagreement, the two chambers may pass their own versions and then send them to a conference committee. About 20 percent of all bills that pass Congress go through conference committees.
Conference committees have members from both the House and Senate, usually between three and nine altogether. The Speaker of the House and the majority leader of the Senate appoint the conference committee members with advice from the chairs of the committees that wrote the bills. The Speaker and Senate majority leader normally appoint members from the very committees that wrote the bills being sent to conference.
Members of a conference committee meet to work out the differences in the House and Senate bills. If a majority of the committee can agree on a single version of the bill, that version goes to the House and Senate with a conference report. The report explains the version that the committee agreed upon. The House and Senate then vote on that version. They are not allowed to make any changes to it.
If both chambers pass the conference committee's bill by simple majorities, it goes to the president of the United States for consideration. If the bill fails to pass in both chambers, it either dies or can be sent back to the conference committee for further work.
Presidential consideration
When both chambers of Congress pass a bill, it is signed by the president of the Senate (the vice president of the United States) and by the Speaker of the House. The bill then goes to the president of the United States for consideration. If the president signs the bill, it becomes law.
The president, however, can veto, or reject, a bill by sending it back to Congress with reasons for the veto. This is called a return veto. If the president vetoes a bill, it does not become law unless Congress votes to override the president's veto. For a bill to become law despite a president's veto, two-thirds of both the House and Senate must vote for the bill in the override vote. According to a study in 2004, prior to 1969, Congress overrode one out of every eighteen return vetoes. Since 1969, Congress has overridden one out of every five return vetoes. As of 2005, the most recent override happened in February 1998, when Congress overrode a veto from President Bill Clinton (1946 served 1993001) of a bill for funding thirty-eight military construction projects.
Committee work
Drafting legislation is not the only work members of Congress do in committees. Standing committees do oversight work, select committees investigate specific issues, and joint committees handle matters that require action by both chambers of Congress.
Legislative oversight
Many congressional laws concern the operation of federal departments and agencies. Departments and agencies are offices that administer programs for a specific area of government. The Department of Agriculture, for example, administers federal programs for American agribusinesses and farmers. The Central Intelligence Agency collects intelligence (information) concerning national security, or safety.
Most departments and agencies function in the executive branch of the federal government, under the president of the United States. Congress and its standing committees, however, are responsible for the legislation concerning these departments and agencies. To make sure the departments and agencies are working properly, the standing committees of Congress engage in oversight work.
Oversight work can take many forms. Committee members and their staffs often meet informally with agency officials to learn how things are going and to discuss specific problems. A committee might require a department to provide a report about an area of concern. If a department or agency is having a major problem, the committee can hold formal hearings to investigate the situation.
Oversight work can lead to correction of a problem by the department or agency. It also can result in new legislation to change the way a department or agency works or is funded.
Select committees
Select committees, also called special committees, are committees that the House and Senate create, individually, to investigate specific issues. Select committees are usually temporary instead of permanent.
Select committees can investigate governmental problems. In 1987, for example, both chambers of Congress created select committees to investigate the administration of President Ronald Reagan (1911004; served 19819), which sold weapons to Iran and used the money illegally to provide weapons to rebels fighting the government in Nicaragua. After the terrorist attacks in America on September 11, 2001, the House created the Select Committee on Homeland Security to develop government policies regarding homeland safety in America and to oversee homeland safety activities in the executive branch. It became a standing committee in January 2005.
The chambers of Congress also use select committees to investigate new areas of legislation. Usually, however, select committees cannot receive bills that are introduced into Congress for consideration or send bills to Congress for a vote.
Joint committees
Joint committees are committees that both chambers of Congress create together. These committees usually conduct research and provide Congress with information. The Joint Economic Committee, for example, studies and provides information on the nation's economy. The Joint Committee on Taxation studies and provides information on the tax effects of America's laws and policies. As with select committees, joint committees usually cannot receive bills from Congress for consideration or send bills to Congress for a vote.
The national budget
The national budget is the plan for how America is going to raise and spend money each year. The Constitution gives Congress the power to raise money through taxes and debt, or borrowing, and to decide how to spend it. Under this authority, Congress had primary responsibility for preparing the national budget each year until 1921.
In 1921, Congress passed the Budgeting and Accounting Act, or BAA. The BAA gave the president of the United States the job of preparing an initial budget plan each year. It also created the Bureau of the Budget, a governmental office for helping the president prepare the annual budget. (In 1970, the Bureau of the Budget was renamed the Office of Management and Budget, or OMB.)
Even after 1921, Congress retained the constitutional power to pass the final budget each year in tax and spending laws. The president's power under the BAA, however, made it hard for Congress to change the president's annual budget plan very much. So in 1974, Congress passed another law, called the Budget and Impoundment Control Act, or BICA. This act created standing budget committees in both chambers of
To give Congress more control over the federal budget, BICA established a schedule for the process. It made the government's official budget planning year, or fiscal year, the period that runs from October 1 through the following September 30. Each year by the first Monday in February, the president must present the administration's proposed budget for the upcoming October through September cycle. With assistance from OMB, the president prepares the proposal with budget requests from the various government departments and agencies.
In February, the budget committees of both chambers of Congress begin studying the president's proposal with assistance from the CBO. By spring, the budget committees prepare their own proposal for overall government revenue, debt, and spending levels for the upcoming fiscal year. Congress's standing committees then work on budgets for their areas of concern using the budget committees's spring resolutions as a guide.
For the revenue side of the budget, the House Ways and Means Committee and the Senate Finance Committee work on laws pertaining to taxes and other sources of income.
Authorization committees in the various standing committees prepare bills for appropriating, or giving, money to mandatory government programs. A mandatory program is one that must be funded under the law. As of 2005, mandatory spending covers about two-thirds of the annual federal budget.
Finally, the Appropriations Committees in the House and Senate work on thirteen bills assigning discretionary money to the various government departments and agencies. Discretionary money covers programs that are not mandatory, or required, but that Congress chooses to fund. For example, Congress might decide to give money to the Department of Defense for new bomber aircraft. The thirteen bills drafted by the Appropriations Committees cover thirteen broad areas of government.
During the whole process, members of Congress and their staffs meet with the president and the president's staff to negotiate deals on how the final budget will look. If all goes according to plan, which it usually does not, Congress passes the budget in the form of the mandatory appropriations bills and the thirteen discretionary appropriations bills by October 1. If some of the bills are not passed by then, Congress has to pass temporary laws to provide money to keep the government running until all the appropriations bills pass.
Members of Congress and their staffs spend lots of time on casework, helping constituents with personal governmental problems. Constituents are the people whom a member of Congress represents. A senator's constituents are the residents of the senator's entire state. A representative's constituents are the residents of the congressional district for which the representative was elected. Each congressional district has an average of about six hundred thousand residents.
Constituents ask members of Congress for help with a variety of governmental issues. Some might be having trouble getting a refund from the Internal Revenue Service, which
collects federal income taxes. Others might be having trouble getting a passport from the Department of State for traveling to foreign countries. Senators and representatives help constituents by talking to people in the appropriate government offices to try to resolve such problems. According to Mark Roelofs in The Poverty of American Politics, one estimate says members of Congress spend 80 percent of their time on casework.
Doing casework for constituents is part of building support for reelection. When Congress is in session, the members are usually in committee meetings and on the floor of Congress from Tuesday through Thursday. The rest of the week they fly back to their home states or districts to make public appearances, meet with constituents, campaign for reelection, and pay attention to casework. According to Walter E. Volkomer in American Government, when U.S. representative Gary Ackerman (1942 of New York was asked how important casework is, he said, "About second to breathing."
Campaigning is not technically part of the job for senators and representatives. They are paid to make laws, not to run for reelection. Campaigning, however, consumes a lot of time for members of Congress.
Under the U.S. Constitution, the entire House of Representatives is up for election every two years. This means representatives who want to serve more than one term have to begin working on reelection campaigns soon after taking office. Representatives who make careers out of working in the House have reelection campaigns working all the time.
Senators face reelection every six years. This means they do not have to spend quite as much time on reelection campaigns as representatives do. The Senate seats are divided into three groups for election purposes. Every two years, when the entire House is up for election, one group of Senate seats faces reelection, so there are always some members of the Senate working on reelection.
The first thing members of Congress must do to get reelected is raise lots of money. In 2000, winning candidates in the House spent an average of about $636,000 on their campaigns. Winning senators spent an average of $5.6 million.
The money for campaigns comes from many sources. Candidates can spend as much of their own money as they want to get elected, which means that wealthy people often have an advantage over candidates who are not as financially endowed. The rest of the money raised during campaigns comes from donations, mostly from political action committees (PACs) and individual citizens.
PACs are organizations that businesses and other groups form for collecting money for donation to political candidates. Members of Congress usually get more donations from PACs than their challengers get. This is because members of Congress can already pass laws favorable to the businesses and organizations that make PAC donations.
In addition to raising money, campaigning involves making public appearances, visiting with voters, creating media advertising campaigns, debating challengers, and appearing on the evening news whenever possible. Name recognition goes a long way toward winning an election.
Statistics show that members of the House who run for reelection win about 90 percent of the time. Senators who run for reelection win most of the time too, but less frequently than members of the House. This is because senators have to win support from an entire state. Representatives only have to win support from a district of about six hundred thousand people, and these districts are usually drawn to favor one of the major political parties, the Republicans or the Democrats.
Miscellaneous offices
Congress has miscellaneous offices that support the lawmaking process or serve another governmental function. One of the most well known is the Library of Congress. President John Adams (1735826; served 1797801) and Congress created the Library by law in 1800. In 1801, it received its first collection of materials, 740 books and 3 maps ordered from London.
In 1814, during the War of 1812 (18124), Great Britain burned many government offices in Washington, D.C., including the 3,000-volume Library of Congress. The next year, former president Thomas Jefferson (1743826; served 1801) restocked the library by selling his personal collection of 6,487 books to Congress for $23,940. As of 2005, the Library has 29 million books and 99 million other items on 530 miles of shelving. According to the Library's Web site, its mission is "to make its resources available and useful to the Congress and the American people and preserve a universal collection of knowledge and creativity for future generations."
Other congressional offices include the Architect of the Capitol, which develops, operates, and maintains the Capitol and congressional office buildings, Library of Congress buildings, Supreme Court building, U.S. Botanic Garden, Capital power plant, and other facilities. The U.S. Botanic Garden operates indoor greenhouses and outdoor gardens for plants from the United States and around the world. The Government Printing Office, created in 1860 to serve as a printer for Congress, collects and publishes information about the federal government for all three of its branches: executive, legislative, and judicial.
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Source: Checks and Balances: Three Branches of American Government, ©2005 Gale Cengage. All Rights Reserved. Full copyright.