Constitutional Role of the Legislative Branch
Constitutional Role of the Legislative Branch
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 (1755–1827) wrote to a former Continental congressman, Elbridge Gerry (1744–1814). 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 (1751–1836) 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 (1757–1804), and Secretary of Foreign Affairs John Jay (1745–1826) 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]."
Washington, District of Columbia
In 1783, Congress—the governing body of America under the Articles of Confederation—met in a building called Old City Hall in Philadelphia, Pennsylvania. When the American Revolutionary War (1775–83) ended that year, Congress did not have enough money to pay all the American soldiers. In June, a large body of unpaid soldiers invaded Philadelphia to demand payment from Congress. The congressmen escaped from the capital unharmed.
Historians say this event sparked interest in setting aside a piece of land for the nation's government, a place where the government could erect forts for protection. The Constitution of 1787 approved such a plan. Article I, Section 8, said that if one or more states would cede, or give away, up to one hundred square miles of land for the federal government, Congress could accept the land and have full control over the area.
The delegates to the Constitutional Convention of 1787 offered other reasons for this plan. Speaking on July 26, Colonel George Mason (1725–1792) expressed concern that if the federal government was in the same city as a state government, it might give the federal government's work a local flavor.
James Madison (1751–1836), the delegate from Virginia who would become the fourth president of the United States, agreed. Speaking at the convention on August 11, Madison said that since American government under the Constitution would be more powerful than under the Articles of Confederation, more people would need to come to the site of government for government business. As such, it would be best for the government to be unconnected with any single state.
During the fall and winter of 1787–88, there was much debate over this part of the Constitution in the state conventions for ratifying, or approving, the new government. Some people feared that giving the new government its own city was part of a plan to make the federal government dominate the state governments. Others said it would be unfair to create a city whose inhabitants would have no control over their local government. (Since the new city would not be part of any state, the residents would have no role in electing members to Congress, which was going to have full control over the city.)
After ratification of the Constitution in 1788, the states of Maryland and Virginia offered land to the federal government in 1790 amounting to one hundred square miles around the mouth of the Potomac River. In the mid-nineteenth century, the federal government returned most of Virginia's land, leaving the federal government with the sixty-eight square miles it has occupied since then. The area became Washington, District of Columbia (or simply Washington, D.C.). President John Adams moved into the White House and Congress moved into the Capitol building there in 1800.
John Adams (1735–1826) 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 (1732–1799) 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 evident—Hence 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 (1753–1813) 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 (1721–1793) 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 (1737–1809) 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 (1745–1813) 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 chamber of the legislature, separate from a chamber for men of great wealth: "By a representation of the men of middling [moderate] fortunes in one house, their whole strength is collected against the influence of wealth."
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 these—The common defence of the members—the preservation of the public peace as well against internal convulsions [disturbances] as external attacks—the regulation of commerce with other nations and between the States—the superintendence [supervision] of our intercourse [interaction], political and commercial, with foreign countries."
Property as Liberty
When John Adams wrote of liberty in Defence of the Constitutions of Government of the United States, he was referring mainly to the freedom to acquire and keep property:
The original meaning of the word republic could be no other than a government in which the property of the people predominated and governed; and it had more relation to property than liberty. It signified a government, in which the property of the public, or people, and of every one of them, was secured and protected by law. This idea, indeed, implies liberty; because property cannot be secure unless the man be at liberty to acquire, use, or part with it, at his discretion, and unless he have his personal life and limb, motion and rest, for that purpose. It implies, moreover, that the property and liberty of all men, not merely of a majority, should be safe; for the people, or public, comprehends more than a majority, it comprehends all and every individual; and the property of every citizen is a part of the public property, as each citizen is a part of the public, people, or community. The property, therefore, of every man has a share in government, and is more powerful than any citizen, or party of citizens; it is governed only by the law.
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 (1775–83). 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 [1743–1826] and Patrick Henry [1736–1799], 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 Boston, because a new state constitution in 1780 had raised the property qualifications for voting. They were also upset that the legislature was refusing to issue paper money for helping farmers get out of debt. Some of the farmers, including Daniel Shays (1747?–1825), were in debt because the United States did not have money to pay them for their service in the American Revolutionary War.
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 (1738–1820; reigned 1760–1820) 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 1787–88, 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 (1723–1790) reminded readers how British statesman Oliver Cromwell (1599–1658) 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 (1745–1804) 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."
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.
Zinn, Howard. A People's History of the United States. New York: HarperCollins, 2003.