Introduction Essay: The Legislative Branch
Written by: Kirk Higgins, Bill of Rights Institute
Guiding Questions
How does the legislature represent ‘We the People?’ What was the bi-cameral structure of the House and Senate designed to do? Where are the requirements, modes of election, and powers for the House and Senate found in the Constitution? What are these powers? What else is contained in Article I?
The Legislative Branch
The foundation of self-rule in the American republic is most clearly evidenced in the legislative branch of government. Congress is made up of representatives and senators who are elected by the people and most directly represent their will. The Constitution empowers the Congress to make the laws in Article I of the Constitution.
Because of its lawmaking power, Congress is a powerful branch of the federal government. In fact, in Federalist #51, James Madison stated, “In republican government, the legislative authority necessarily predominates.” Congress passes laws through majority rule, but it must simultaneously ensure minority rights are protected. The majority can act tyrannically and pass unjust laws. For this reason, Congress is divided into two chambers: the House of Representatives and the Senate, which is the principle of bicameralism, or two chambers. This provides an internal check on legislative power within Congress and supports the principle of limited government.
Elections support the principle of bicameralism. In Federalist #51, Madison argued that the “different modes of election” of the two chambers helped control the most powerful branch. The House of Representatives was originally the only branch of the national government directly elected by the people. They serve only two years to provide for rotation in office so representatives know the sense of the people and express their will in Congress. The Senate was originally elected by state legislatures until the Seventeenth Amendment, which provided for popular election in the states. Senators serve longer terms of six years. Representatives can serve in office as young as 25 years old, while Senators have to be 30 years old.
Article I of the Constitution set up the Congress and listed the powers that Congress is allowed to exercise and those which are forbidden. Article I, section 8 grants Congress many enumerated powers such as passing taxes, regulating trade, and declaring war. It also exercises many implied powers based upon the enumerated powers. For example, Congress has an enumerated power to create an army, but it can also create an air force as an implied power. In addition, the Necessary and Proper Clause, or Elastic Clause, in Article I, section 8 grants Congress flexibility in creating laws related to the other powers that are listed. Article I, section 9 forbids Congress from exercising certain powers and thus helps to preserve liberty by limiting government power.
The constitutional basis of congressional powers preserves the rule of law. When considering bills, members of Congress must interpret the Constitution to discern whether Congress has the authority to pass a certain bill. The president interprets the Constitution when deciding to sign or veto bills. The Supreme Court interprets the Constitution when it reviews congressional laws.
As a body of 538 representatives of the people that makes laws, Congress is uniquely situated to be the branch of government dedicated to discussion and deliberation. Congress represents a large and diverse country with a multitude of different interests and viewpoints. Congress represents their will but also aims to “refine and enlarge” those views so that laws might promote the public good and justice. This is accomplished through the hard work of debating, discussing, and listening to forge a consensus and build broad coalitions. This requires compromise, negotiation, and mutual accommodation when considering bills. Deliberative lawmaking promotes greater national unity rooted in civic virtues such as respect, moderation, and humility to forge the spirit of a common purpose as Americans.
The branches of government exercise certain powers over the other branches to limit government which is the principle of checks and balances. For example, a congressional bill goes to the president to sign into law or to veto. The Supreme Court can review a congressional law in a process called “judicial review.” The president makes treaties, but the Senate ratifies them. This creates a healthy tension and dynamic relationship between the branches.
American representative self-government is embodied at the national level in Congress. That body has members who represent the will of the people in their districts and states, but they also can help bind the country together with just laws that serve the common good. This builds trust, cooperation, and moderation in the halls of Congress and on Main Street. A healthy Congress helps represent Americans and binds them together as a people.
Through that deliberation and compromise, Congress has passed significant laws that have shaped and continue to shape the country. Studying these laws provides a unique insight into how American government works, how it represents the will of the people, how it promotes justice, and how it protects rights and liberties. The legislative branch seeks to make real the core purpose of the Declaration of Independence, “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”