Part 1: What’s So Great About Our Constitution, Anyway?
Essay 14 – The Legislative
“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.”
Article 1, Section 1, U.S. Constitution
The purpose of the legislative branch is to make laws.
Per the Constitution, the legislature has this power exclusively, meaning no other branch of government has the authority to make laws. Because the power to make laws has such potential to be abused and diminish our liberty, it was placed in the hands of Congress, which is the closest and most accountable branch of government to the people.
If laws must be made, then only let them be made by those who will have to stand for election directly from the people on a very frequent basis.
The founders feared that the Legislative would be the most powerful branch of government and most likely the branch that would overpower the others. In order to place some control on the legislature, they decided to split it into two chambers…the House and the Senate. This is known as a bicameral legislature.
The bicameral nature of the legislature serves a few main purposes:
1. It gives voice to the people.
The elections for the House are the closest thing to pure democracy that we have in the system. This is the people’s voice at the federal level. Each House district elects it’s representative from a direct vote of the people where the majority wins. The elections are held every 2 years…presumably long enough for a new representative to get acclimated to the system enough to be effective, but short enough to ensure very frequent accountability to the people. We expect that our representatives in the House will know and respect the views of the people in their district, because if they do not, they will not be re-elected.
2. It gives voice to the states.
Originally, the Senate was intended to be the voice of the State. This was accomplished by the method of selection for the Senate, which was done by each state legislature. This was more of an indirect form of democracy in that the people did vote for their state legislature, so they did have an indirect say in who the Senators would be, but the actual Senator was chosen by the legislature in the view that the legislators would have a better understanding of who would be qualified to represent the State’s interests at the federal level. Ensuring that the Senators represent the state’s interests was crucial in maintaining the balance of powers between the state and federal governments (federalism).
3. It provides some balance and protections from large states running roughshod over small states.
The form and structure of representation at the federal level was very hotly debated during the Constitutional Convention. It was one of the areas of great disagreement that threatened to defeat the entire cause. Small states were concerned that if representation was based solely on population, then the large states would easily out vote the small states on every issue. This threatened the union with the highly destructive tyranny of the majority problem. In the end, there was a compromise – the number of representatives each state would send to the House would be determined by population, while in the Senate, each state would have an equal representation of two senators.
4. It provides a buffer from the problem with factions, quickly changing passions of the people, and demagoguery.
If we only had one chamber in the legislature that was directly elected by the people on a frequent basis, the Founders feared that the quickly-changing passions of the day would create havoc in the lawmaking. The House was expected to be much more reactionary to what the people oftentimes impulsively and emotionally demand (mob rule), whether or not its truly in the best interests of them or the country. The Senate was intended to be a “cooling off” chamber, in a sense. Because the senators would serve for a longer term (6 years) and were not directly elected by the people, they would not feel as pressured to go with the current passion. Also, the Senate was expected to be filled with more experienced, proven statesmen that would take care to have careful deliberations.
The specific, enumerated powers that the people have granted to the legislative branch are listed in Article 1, Section 8 of the Constitution. These are the only areas that the federal government has the authority to make laws concerning. It’s beyond the scope of this essay to discuss each of these granted powers, but I encourage everyone to read through them and give it some thought.
Think about all of the issues that our congress debates and gets themselves involved in and then try to find the specific, enumerated power in the Constitution that authorizes them to do so.
Where we’ve gone wrong…
I’ve talked about the 17th Amendment in previous essays. This is the Amendment to the Constitution that changed the way we elect our senators from the original selection by the state legislatures to the current direct popular vote of the people.
This created a fundamental change in the way senators were held accountable and to how they viewed their role in the system.
Originally, they were to be the representative of the states’ interests at the federal level, ensuring that the balance of power between the federal government and the state governments remains intact. While they were selected and held accountable by the state legislatures, this system maintained that balance fairly well.
However, after the change with the 17th Amendment, the states pretty much lost their voice in the federal government and the power took a dramatic shift to where we are now…the federal government is pretty much involved in everything, vastly more than what was intended and actually authorized by the people.
The states lost their ability to stand as a check against that power shift.
The result is that the federal government got involved in so many aspects of our everyday lives, that the bureaucracy grew exponentially over the past 100 years (since the ratification of the 17th Amendment in 1913).
Now we have what is known as the “Administrative State”, which falls under the jurisdiction of the Executive Branch. Because the federal government assumed so much power and got involved in so many things, the Legislature was not able to keep up with it all and that resulted in them passing on many of their legislative duties to the Administrative State.
What they do now is pass very large, but generally worded laws and then hand it over to the Administrative State to work out all of the details, write the regulations and rules for those laws (effectively creating these regulations with the full affect of actual law). Basically, the Legislative Branch has abdicated its exclusive power of making laws and handed it to the Executive Branch.
These agencies in the Administrative State are now essentially making law, enforcing law, and adjudicating it. The very powers that, per James Madison, if are all held by one entity, its the very definition of tyranny. And it happens to be in a part of the federal government that is not even part of the Constitution and the people within it are not elected by or accountable to the people.
About this series:
The People Are Sovereign! is a series of 30 essays that will be posted on a daily basis. The series will continue tomorrow with Essay 15 – The Executive
To view the previous essay in the series, click this link: Essay 13- Separation of Powers
To view the next essay in the series, click this link: Essay 15- The Executive