The Owner's Manual: Article I, the Congress

Special to FreeRepublic ^ | July 10, 2008 | John Armor (Congressman Billybob)

[Congressman Billybob]

(Editor's note: This is the second in John Armor's series of ten articles to explain the Constitution and America's government. The first article appears below. Watch for others in the series, which will appear periodically in this space.)

Article 1, the Congress

In the modern world, we take it for granted that every nation has a parliament or legislature. Even the most barbarous, tin-pot despot usually rules with a pliant, controlled legislature in place under him. There was no such assumption of a legislature when the U.S. Constitution was being written in Philadelphia. That is why the very first Article of the Constitution created the Congress. Section 1 states, "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

The framers of the Constitution were well aware that movement toward popular sovereignty in England consisted of Parliament obtaining the "power of the purse," control over government spending, from the Crown. The framers went one step further in powers they gave to Congress, giving the power to declare war solely to Congress, but that’s getting ahead of the story.

The central idea of the government came from the Declaration of Independence, that government rests on the "consent of the governed." But the heritage was much older than that. In November, 1620, all 41 adult males who had come over on the Mayflower, signed a compact in which they, "combined ourselves together into a civil Body Politick,... And ... to enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the General good of the Colony..."

This was the first written statement of government by popular will on American soil. Perhaps the best known is the slogan of the American Revolution, "No taxation without representation." Certainly the most elegant statement is Abraham Lincoln’s from the Gettysburg Address: "Government of the people, by the people and for the people...." In short, the first order of business had to be the creation of a Congress.

Our Congress is not divided into two houses with different criteria for election/selection because England has two houses, the Lords and the Commons. Instead, this odd arrangement, which appears in relatively few nations, is born of the difficulty of reaching agreement on any government, in Philadelphia.

Our original, failed government was the Articles of Confederation. In it, each state had equal representation. Each sent three to seven congressmen, but they collectively cast only one vote. Yet, at that time one state, Virginia, had one-third of all residents. Virginia and the other large states thought Congress should be based on population.

This fight between the small states that wanted each to have an equal vote, and the large states that wanted a population base, nearly caused the collapse of the Philadelphia Convention. Delegate Bedford Gunning of Delaware suggested darkly that "other nations may take us by the hand" if the small states did not get their way. Ultimately, the Grand Compromise was struck that the states would have equal representation in the Senate, and proportional representation in the House.

In designing their new government, the framers were well aware of the successes and failures of the few republics that had been created in history. They were well aware of direct democracy, in which the citizens voted in person on public issues. This was the pattern from Athens, which had been followed successfully by hundreds of jurisdictions in New England governed by town meetings. But given the limits on travel and communications of the day, they deemed direct democracy both wrong and impractical for the United States.

The framers faced two daunting challenges in the design of the Congress. One was to create a durable balance between the new federal government and the long-existing state governments. The other was to make the federal government itself durable, more durable by far than any other republic.

There are, today, problems with the federal-state balance, and also with our long term survival. Still, history has entered a verdict of success. The government of the United States under its Constitution as amended, has survived longer than any other government under any other written constitution in history.

All but six of the world’s nations have written constitutions. France and Poland were the first two written constitutions after ours. Hundreds of constitutions have been written, put into place, and failed, since the U.S. Constitution went into effect with ten states participating in the election of President George Washington. The reasons for the failures of the others and the success of ours, are found in the designs of those documents.

[Next week: Article I, the Congress in Practice.]

John Armor practiced law in the U.S. Supreme Court for 33 years, and is currently the counsel for the American Civil Rights Union, whose website is at: www.theacru.org. He lives now in Highlands, N. Carolina, and is working on a book about Thomas Paine.

[Congressman Billybob]

This is the second in the series. It will also appear in print media. Hope you find this worthwhile.

John / Billybob

[MattinNJ]

BTTT

[mnehring]

Bump for later

[Diogenesis]

BUMP
Most excellent write-up. Thanks

That being said, this is what the US Congress truly feels about
"consent of the governed" and "government of the people, by the people and for the people".

[allmendream]

Article I section 8 gives Congress 18 enumerated powers, they do NOT have a mandate to legislate themselves whatever power they want.

I think any law passed by Congress should include which of those 18 enumerated powers they think the law is applicable to. That would make a lot of legislation dead in the water from the get go.

[Bigun]

...they do NOT have a mandate to legislate themselves whatever power they want.

They do if WE the people continue to allow it!

Not one of us would even think of hiring a handy man to build a flower bed in our yard and not supervising him but we hire folks all the time to represent us at all levels of government and pay no attention to them at all! WE the people are the problem!

[tacticalogic]

I think any law passed by Congress should include which of those 18 enumerated powers they think the law is applicable to. That would make a lot of legislation dead in the water from the get go.

I believe there is already such a law, that went into effect under Reagan. the problem is that the "substantially effects" doctrine of the Commerce Clause is so open-ended and subjective that there doesn't seem to be anything they can't "find to have a "substantial effect on interstate commerce".

"The question comes to this, whether a power, exclusively for the regulation of commerce, is a power for the regulation of manufactures? The statement of such a question would seem to involve its own answer. Can a power, granted for one purpose, be transferred to another? If it can, where is the limitation in the constitution? Are not commerce and manufactures as distinct, as commerce and agriculture? If they are, how can a power to regulate one arise from a power to regulate the other? It is true, that commerce and manufactures are, or may be, intimately connected with each other. A regulation of one may injuriously or beneficially affect the other. But that is not the point in controversy. It is, whether congress has a right to regulate that, which is not committed to it, under a power, which is committed to it, simply because there is, or may be an intimate connexion between the powers. If this were admitted, the enumeration of the powers of congress would be wholly unnecessary and nugatory. Agriculture, colonies, capital, machinery, the wages of labour, the profits of stock, the rents of land, the punctual performance of contracts, and the diffusion of knowledge would all be within the scope of the power; for all of them bear an intimate relation to commerce. The result would be, that the powers of congress would embrace the widest extent of legislative functions, to the utter demolition of all constitutional boundaries between the state and national governments."

Joseph Story, Commentaries on the Constitution
2:§§ 1073--91

[Congressman Billybob]

I've seen that photo a few times before. But yours is, I think, the most cogent use of it, to date.

John / Billybob

[Congressman Billybob]

Thank you. Excellent quote from Justice Story, who was also at the same time a Professor of Law at Harvard. (Harvard was not always an enemy of the American theory of limited government and checks and balances.)

John / Billybob

[allmendream]

I think just as “promote the general welfare” doesn't constitute a blank check of legislative power, neither does the commerce clause. The only limit I have seen the SCOTUS enforce on the commerce clause in recent memory was that a federal ban on guns within a certain distance of a school did not constitute a power of Congress under the commerce clause. That someone thought it did just goes to show how out of bounds Congress has taken things under the rubric of the commerce clause.