Writing the Constitution: Congress

Virginia and New Jersey Plans

The convention delegates reached agreement on numerous issues with little difficulty. Within a week they agreed that the new government should have three parts—a national legislature, an executive, and a judiciary—and that the government's powers would be greater than those given under the Articles of Confederation. They accepted the principle of an elected legislature that would be bicameral—consisting of two chambers—and the executive would be one person who was elected (although initially it was thought that election would be by the state legislatures rather than the people generally).

Much of this structure was included in the Virginia Plan, a package of resolutions put forth by the advocates of a strong central government that would be unitary. That is, it would operate directly on the people and be independent of the states. It was to be a "national government" in contrast to the "merely federal" system that existed under the Articles and was found inadequate. Many understood a national government to mean a regime of potentially unlimited powers that would extinguish the independence of the states. Although the backers of the Virginia Plan wanted a strong central authority, they were proposing to create a system in which national and state governments would exercise dual sovereignty over the people within separate and prescribed fields. Such a dual system, unknown in 1787, was later recognized as one of the most remarkable creations of the Founders.

The biggest problem, however, arose from the Virginia Plan's provisions that both chambers of the national legislature be based on population. The smaller states saw this provision as a guarantee of domination by the most populous states, Virginia, Pennsylvania, New York, and Massachusetts. The small states responded with the New Jersey Plan, which retained the single chamber (unicameral) legislature that was in use under the Articles of Confederation. Other provisions also made the new government much more of a federal system than the nationalists thought necessary.

The delegates voted for the principle advocated by the nationalists: a new and more powerful central government that replaced, rather than merely reworked, the government of the Confederation. The big state/small state dispute was settled by the Connecticut compromise, also called the Great Compromise. This scheme called for a two-chamber national legislature. The House of Representatives would be based on population and elected by the people, and the Senate would have two members from each state who were elected by state legislatures.

Structure and Power of Government

There was little if any dispute in the Philadelphia convention that the new national government should consist of three branches—legislative, executive, and judicial—and this in turn implied broad acceptance of the principle of separation of powers.

Congress

The Virginia Plan provided for a bi-cameral (two houses) national legislature, as was the practice in the English Parliament and in most of the colonial governments and ten of the thirteen states. Thus, the two-house practice was well known in America, even though it was not used in either the Continental Congress or the Congress of the Articles of Confederation, which were unicameral.

Congress is divided into the House of Representatives, and the Senate. For the House, the delegates accepted the premise that the new government rest on the consent of the people rather than on the state legislatures. Delegates fearful of popular democracy argued for the latter, but their proposal was defeated twice in favor of a popular election for members of the House. Representatives in the House must be 25 years old, lived in the US for seven years and reside in the state they represent. They are elected to two-year terms and the number of representatives from a state is dependent on the population of that state.

The delegates decided in June that state legislatures would elect their state's members to the Senate. This decision stood until 1913 with the ratification of the 17th Amendment to provide for selection of senators by direct popular election. Each state has two senators, regardless of its population. To be a senator a person must be at least 30 years old, have lived in the US for nine years and live in the state s/he represents.

The basis of representation also was a controversial matter, which was rooted in the slavery issue. The convention accepted the basic premise that representation in the House would be based on population, although the Virginia Plan provided for representation in proportion to a state's wealth or free population. The South wanted slaves to be counted for purpose of determining the number of seats given to each state in the House, but not counted in apportioning direct taxes (taxes paid directly to the government by individual citizens) among the states. Northern state delegates believed just the opposite. The result was the Three-fifths Compromise under which a slave was counted as three-fifths of a person for both purposes. The concept of wealth in deciding representation was dropped.

Terms of office were set at two years for House members and six for senators, with one-third of that membership turning over every two years. Qualification for office was set at a minimum age of thirty for senators and twenty-five for representatives. The individual had to be a United States citizen (for seven years for the House and nine for the Senate) and "an Inhabitant" of the state to be represented when selected.

Powers of Congress

The advocates of a strong national government, such as Hamilton and Madison, came to the convention with the expectation of creating a fundamentally new institution that would remedy the shortcomings of the Articles of Confederation. High on the agenda were the powers that the new government would possess, with a particular focus on the legislative branch—Congress—that was at the center of the thinking and experience of the delegates.

The nationalists with their Virginia Plan came prepared with a broad grant of power. This language, which was quite general and sweeping, was debated carefully over the summer until the delegates settled on a list of enumerated powers for Congress. The delegates also included a list of powers to be denied to Congress and to the states. All of these eventually became part of Article I of the Constitution (Sections 8, 9, and 10). Following are the major provisions found in those sections:

Power to Tax

The delegates agreed without much dispute that Congress needed the power to tax to support the new government. The final language provided that Congress "shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States." The inclusion of the words "general welfare" has played an important role in subsequent debate, particularly in the modern period, about the purpose of the Founders. Advocates of proactive government have claimed this was a clear grant of additional and unspecified powers. Proponents of limited government argue that it was merely to clarify that taxation was not just for public debt repayment, but could not be taken as a creating authority beyond those specifically listed in the Constitution.

Delegates had to resolve which chamber—the Senate or House, or both—had authority over bills that raised revenue (taxes) or spent money (appropriations). The sentiment for some time was that this authority should rest with the House, which was common in the states, and not be changed by the Senate, even though a few states did allow that. The final language gave the House sole authority to originate tax bills but allowed the Senate to amend them. The distinction was not explicitly extended to cover appropriation bills. Nevertheless, the House over the years assumed, based on the debate in the convention, that it had the sole power to originate spending legislation, and this prerogative rests with the House to the present day.

Power to Regulate Commerce

Trade among the states and with other countries was severely handicapped under the Confederation by a lack of uniformity in duties and commercial regulation. States often discriminated against products of other states. The delegates were eager to remedy the problems, but regional conflict stood in the way. It was clear that southern states would not accept a constitution that did not protect their vested interest in slave labor and agricultural exports from possible burdensome restrictions that a Congress controlled by northerners might impose.

As a result, the convention included language giving Congress the power to regulate commerce with foreign nations and among the states but with two limitations: a ban on taxing exports and a prohibition on efforts to tax or outlaw the slave trade. The latter was particularly controversial and was modified to last for twenty years rather then indefinitely. In addition, Congress was allowed to levy a duty on slaves, as on other imports, up to $10 a person.

War and Treaty Power

The Articles of Confederation gave Congress the exclusive right and power of deciding issues of peace and war. The delegates proposed giving Congress as a whole the power to make war and the Senate alone the power to approve treaties. The latter was later changed to divide the power between the Senate and the president. The issue of war was more difficult. Some delegates thought the war power should be only with the president, while others favored giving it to the Senate. When neither prevailed, the delegates adopted language to give Congress the power "to declare war." The word "declare" had been substituted for "make" in order to leave the president free to repel a sudden attack. But in the twentieth century this issue became highly controversial as some presidents used other authority they believed they had to commit the nation to wars even though Congress had not declared war. Congress has passed legislation on the power to make war, but the issue has never been fully resolved.

Impeachment

Early in the convention delegates agreed that the president should be removable on impeachment (accusation) and conviction "of malpractice or neglect of duty." How this was to be done depended on who would select the president. At first Congress was to select the president, which made delegates leery of also allowing Congress to remove him. When choosing the president in normal circumstances was given to electors selected in the states (the electoral college), the delegates came up with the formula: impeachment by the House and trial and conviction by a two-thirds majority in the Senate. The causes for impeachment and removal would be "treason, bribery, or other high crimes and misdemeanors." Delegates also extended the impeachment provision to the vice president and other civil officers.

Express and Implied Powers

The delegates wrote into the Constitution many specific powers in addition to those most important ones already noted, including coining money, establishing a military, setting up post offices, and creating lower federal courts. Such powers are known as delegated, or express, powers.

But the Constitution and a very important early ruling by the Supreme Court added greatly to these powers. The delegates provided, in Article I, that "the Congress shall have the Power ... to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested in this Constitution in the Government of the United States." This has come to be called the Necessary and Proper Clause or the Elastic Clause.

The conflicts evident during the drafting of the Constitution continued in the years after it was ratified. Advocates of a strong national government wanted to read these powers broadly, and supporters of a limited government favored rights of the states. They became known, respectively, as Federalists and Antifederalists and became the centers of political activity in the early years of the nation.

The Supreme Court's influence on this debate came in one of its most important early decisions, made in 1819, in a case called McCulloch v. Maryland in which the justices supported the cause of the Federalists. The case involved the United States Bank, created by Congress. Maryland said no such power existed in the Constitution and urged a strict interpretation of the document. In the decision by Chief Justice John Marshall, a staunch Federalist, the Court said it was reasonable that Congress would consider it "necessary and proper" to charter a national bank to carry out its various delegated fiscal powers. With that argument, Marshall created the doctrine of implied powers, allowing the government powers that can be reasonably implied from its delegated powers. Over the decades that followed, the McCulloch decision was the legal underpinning for extensions of powers in the national government, which reached their heights with the New Deal in the 1930s when the nation was in the depths of the Great Depression. Virtually all of modern legislation dealing with subjects the Founders never dreamed of—farm supports, housing subsidies, crime control, and thousands more—is rooted in the implied power doctrine from the earliest days.

In addition to express and implied powers, the government also operates under the doctrine, mainly in foreign affairs, of inherent powers, which usually is defined to mean powers not dependent directly on constitutional grants of authority but from the actual existence of the government. Examples include authority to occupy territory, make treaties, and conduct foreign relations. The Court has said these powers would exist regardless of the Constitution's wording or absence of wording on the subject because they are powers all national governments possess under international law.

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