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.
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.
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
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
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
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
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.
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.