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Article I, Section 08, Clause 09 of the United States Constitution

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Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute

Article I, Section 8, Clause 9

 9:  To constitute Tribunals inferior to the supreme Court;

There is much more to these seemingly simple words than meets the eye.  Indeed, one cannot write meaningfully about them without first advancing to Article III, Section 1 of the Constitution:  The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.  The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

 It is not my intent to deal with Article III, Section 1 more than is minimally necessary for making sense of Article I, Section 8, Clause 9.  I ask the reader’s indulgence to this end.

It is noteworthy that Article III, Section 1 of the Constitution establishes one federal Supreme Court only for the entire United States, and that it separates the powers of this court from those of Congress and the executive.  By establishing just one Supreme Court, the Founders provided for a uniformity of interpretation of the federal laws that otherwise might not have been forthcoming.  By establishing the Supreme Court as separate from the Congress the Founders benefited from the genius of James Madison who built in checks and balances as a response to the Connecticut Compromise that provided equal representation to all the States in the Senate of the United States.  Prior to that Compromise, Madison’s Virginia Plan had advocated subservience of the Supreme Court to the Congress.

Note, however, that the Constitution does not itself create judicial bodies other than the Supreme Court.  The Congress alone – not the Supreme Court not the Executive – is empowered, should it so choose, to take responsibility for such matters.  Exactly how it should do so and in what form would be subjected to close scrutiny of the precise meaning of the wording of the Constitution.

In one – and in my judgment convincing – interpretation, the power given to Congress in Article I, Section 8, Clause 9 ‘To constitute Tribunals inferior to the supreme court’ plainly relates to the power given to Congress in Article III, Section 1 to ordain and establish inferior Courts.  If such is the case, then Article I empowers Congress to establish inferior judicial bodies (tribunals and courts being viewed as synonyms). And Article III reaches out to the tenure conditions attached to all such judges.

Since, in practice, Article I tribunals have not been viewed as identical to Article III courts, however, a careful parsing of the relevant words becomes essential, even if only to explain unjustifiable error.

As always, in parsing the words of the Constitution, it is important to rely upon the meaning of words in 1787, not those of the early twenty-first century.  To this end, I shall rely on the written records of the Founding Fathers and of the major dictionaries of that era, such as those of Samuel Johnson and Noah Webster.

The term ‘tribunal’, to be sure, carries a distinctive historical connotation, derived from the Roman tribunate, a raised platform on which the seats of magistrates were placed.  The term ‘court’, by contrast, derives from the judiciary’s close association in England and France with the king.  However, by Blackstone’s day, the terms were viewed as synonyms in all the major dictionaries. Throughout the early deliberations of the Philadelphia Convention, the Founding Fathers also used the two terms interchangeably, as does Hamilton in Federalist No. 81. Of course, such evidence does not guarantee that the Constitution itself deploys the term ‘tribunal’ under Article I as a synonym for the term ‘court’ under Article III.

There is some support from the drafting history for the view that the Constitution distinguishes between the two concepts.  The distinction may have grown out of the mid-convention debates over the possibility of employing some non-life-tenured judges to adjudicate federal claims.  Specifically, Congress might appoint state tribunals to act as courts of first instance in deciding questions of federal law.  Madison’s notes from the debates offer support for such a change in emphasis once the New Jersey Plan and the Virginia Plan were jettisoned following the Connecticut Compromise.  For the Compromise eliminated an early provision that mandated the creation of lower federal courts and substituted a regime of congressional discretion (as confirmed by Articles I and III).  At this point, the Committee of Detail dropped the usage of the term ‘tribunals’ to describe the federal courts in Article III, and it required life-tenured judges in Article III courts, while refusing to impose any such requirement for Article 1 tribunals.

Further support for distinguishing between Article I tribunals and Article III courts may be discerned in the empowerment provisions themselves.  Article I empowers Congress to ‘constitute tribunals interior to the supreme court’, whereas Article III empowers Congress to ordain and establish courts.  This difference in description of congressional powers is suggestive that the two adjudicative bodies might arise in different ways and with different degrees of permanence.  Specifically, Congress might ‘constitute’ tribunals either by creating new bodies from scratch, or by designating existing bodies as inferior tribunals.  To ‘ordain and establish’ inferior courts, by contrast, seems to contemplate the creation of new courts established in accordance with Article III.  Such a fine distinction is in accordance with the major dictionaries of the late eighteenth century.

In any event, Congress has exploited such parsing opportunities in order to distinguish clearly between Article I tribunals and Article III courts (A fairly good guide to congressional behavior in general is that if you give it an inch it will take a kilometer).  From the outset, Congress has established some (but not all) Article I tribunals without the Article III safeguards of life-tenure and remuneration.  These tribunals consist of certain federal courts and other forms of adjudicative bodies, endowed with differing levels of independence from the legislative and executive branches.  Some take the form of legislative courts set up by Congress to review agency decisions; others take the form of military courts-martial appeal courts, ancillary courts with judges appointed by Article III and administrative judges.

As one would predict, Congress (and the Executive) does not always relish the idea that Article I tribunals should be inferior to the Supreme Court.  Yet that is an inescapable reading of the Constitution.  The specification that tribunals and lower courts must remain inferior cements the requirement of the Supreme Court’s ultimate supremacy.  The requirement of inferiority precludes Congress (and by clear implication, the executive branch) from creating free-standing courts, investing them with some portion of judicial power, and giving them freedom from oversight and control of the Supreme Court.  In this regard, the Founders were only too mindful of such abuses of executive power by the Stuart kings in England’s not-so-far-distant past.

This portrait of Article I tribunals as acting outside of the judicial power, while remaining subject to oversight and control by Article III courts is reflected in modern jurisprudence.  However much it would like to do so, Congress (and the Executive) cannot create tribunals and place them entirely beyond the supervisory authority of the federal courts.

The most pressing recent variant of this logic effectively deals with the decision by President George W. Bush to create military tribunals for the adjudication of criminal claims against individuals designated as enemy combatants.  Although the government has argued for an exceedingly restricted judicial role in overseeing such tribunals, the Constitution clearly requires that they must remain inferior to the Supreme Court and subject to judicial review, at least when such tribunals operate within the jurisdiction of the United States.

Americans should be eternally thankful to the Founders for providing us with such protections, both under Article I and under Article III of the Constitution.  Unless the parchment unravels completely, there will be no Court of the Star Chamber, no Court of High Commission, and no Bloody Assize in the Unites States of America.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia.  He is author of Liberty and the State (The Locke Institute 1993), co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute and the Institute of Economic Affairs 2009), and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010).  For further details see www.thelockeinstitute.org and www.charlesrowley.wordpress.com

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Article I, Section 07, Clause 3 of the United States Constitution

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Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

Article I, Section 7, Clause 3

3:  Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Within a single clause we see on display one of the most important components of the U.S. Constitution: a system of checks and balances. Within Article 1, Section 7, Clause 3 we see that not only must a bill pass through both houses of the bicameral legislature, but it must also be signed by the President, who resides in the executive branch, in order for it to become law.

The bicameral legislature is the result of what would become known as the Connecticut Compromise. At the Constitutional Convention of 1787 the large states proposed a bicameral legislature where the states would be represented in the national assembly in proportion to their state’s population. Therefore, a state like Virginia would have more representatives than a small state like New Jersey. The small states countered with what would become known as the New Jersey Plan. In this plan there was to be a unicameral legislature in which the states would be represented equally. Roger Sherman from Connecticut proposed a bicameral legislature in which the membership in the lower house would be determined by state population and in the upper house each state would be represented equally. There were some modifications before it was put into the Constitution, but for the most part the Connecticut Compromise created our current legislative structure in which each state is represented in the House of Representatives in proportion to the state’s population and each state is represented by two senators in the upper house, or Senate. In order to balance the interests of the small states and the large states, a bill must pass through both houses in identical form before it can be sent to the President for his signature or veto.

By instituting a system of checks and balances the Constitution introduces delay into the process in order stymie reactionary policies by allowing various interests to voice their support or opposition. This assuaged the concerns of those who feared the ability of the many to lead the country haphazardly down a path of ever changing public sentiment, and those who feared the capricious decision making of a monarchy or aristocracy that would strip the people of their liberty. Therefore, the Connecticut Compromise was not just a compromise between big states and small states, but between those who favored more democracy and those who favored less. The House was intended to be representative of the people’s interests—as members of this chamber were elected directly by the people—and the Senate was intended to be representative of the entire state as determined by the state’s political elite—as Senators were to be chosen by the state legislature, for it was not until the ratification of the 17th Amendment in 1913 that Senators were directly elected by the people.

Once a bill satisfied the concerns of the people and the elite, and those from large states and small states, it was sent to the President who was supposed to represent the view of the whole nation. Thus, it was yet another check introduced into the system. If the bill ran against the nation’s best interests the President was supposed to veto it. But, the President could not single-handedly stop legislation as Congress is given the ability to override a veto by a 2/3’s vote in each chamber. In granting veto override authority to Congress the Framer’s of the Constitution institutionalized distrust of a single executive, surely a by-product of their experience under King George III.

When a system of checks and balances is effectively implemented it is able to prevent the interests of some overwhelming the interests of others in a way that would threaten safety and liberty. When a group has the ability to protect its interests against the competing interests of another group, a compromise must be reached between the competing groups in order for the policy process to move forward. The compromise produces moderate policy, and change that is slow and incremental. The animating characteristic of this program is self-protection, which itself is spawned from the emphasis the Framer’s placed on liberty. We cannot entrust others to protect our liberty, but we must do it ourselves by being engaged, informed, and responsible in our political and private lives. It is our liberty that gives us the ability to do these things, and it is our liberty we protect when we do. Because liberty is an instrumental and intrinsic value, there is a symbiotic relationship between our political involvement and our liberty that the Constitution seeks to institutionalize.

Kyle Scott is a lecturer in the Department of Political Science and Honors College at the University of Houston. His third book, Federalism, is due out March 17th. Dr. Scott has written on the Federalist Papers for Constituting America and proudly serves as a member of its Constitutional Advisory Board. He can be reached at kascott@uh.edu. Or, you can follow his blog at www.redroom.com/member/kylescott

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Article I, Section 02, Clause 5 and Section 3, Clause 1 of the United States Constitution

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Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Article 1, Section 2, Clause 5

“The House of Representatives shall chuse the Speaker and other Officers; and shall have the sole Power of Impeachment.”

The Articles of Confederation had established a federal government in which all three powers—legislative, executive, and judicial—resided in one body, the Congress.  This proved unwieldy and ineffectual.  In principle, such an arrangement violated the Jeffersonian precept that any person or institution holding all of these powers constitutes a tyranny.  The popular foundation of Congress under the Articles mitigated this danger but did not remove it, inasmuch as popular majorities might well tyrannize.  The primary guard against Congressional tyranny thus consisted precisely in Congressional incompetence, an incompetence derived not from the incapacity of its members but from the structure of the institution itself.  At Philadelphia, the Framers needed to remove the structural impediments to good government while simultaneously preventing governmental efficiency from malign use.  Separated, balanced, but also interdependent branches of government, each exercising one of the three powers, could prevent tyrannical government without preventing firm government.

The House of Representatives chooses its own officers, including its chief officer, the Speaker of the House.  This seems obvious to us now, but consider the other possibilities.  The Framers might have empowered the President to choose these officers, selecting them from each newly-elected batch of Representatives.  This quite obviously would have compromised the independence of the House from the Executive branch.  In the most recent Congressional election (for example) it would have enabled President Obama to choose the officers of a House that had been elected in part as a popular rebuke to the president’s party and its policies.  Alternatively, the Framers could have provided that the Speaker and perhaps some of the other officers might be elected by the Electoral College—i. e., by representatives of the people as a whole meeting prior to and independently of the first meeting of the newly-elected House.  But this would elevate them to same status as the president and vice-president; separation and balance of powers requires that equal prestige be attached to the legislature as a branch of government and not to particular members within it.  Choice of the House officers by the House members ensures that those officers will be well known and esteemed by the majority of their colleagues.  Other methods of selection could not guarantee this.

The power of impeachment bespeaks the character of the American regime, of republican government itself.  In his 1791 Lectures on Law, James Wilson writes, “The doctrine of impeachments is of high import in the constitutions of free states.  On one hand, the most powerful magistrates should be amenable to the law; on the other hand, elevated characters should not be sacrificed merely on account of their elevation. No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.”  The laws are the considered judgments of the elected representatives of the American people; to violate them while entrusted with a Constitutional office must deserve the swiftest punishment consistent with a fair trial.  However, only a violation of the law can deserve such punishment, or else no sensible person would undertake the responsibilities of public office.  To keep impeachment and trial within the bounds of the rule of the people’s law, as distinguished from the envy, partisan rancor, or other passions of the hour must be a fundamental purpose of any just and reasonable constitution-maker.

The Framers assigned the power of impeachment to the House.  That the House wields the sole power of impeachment speaks not only to the separation of powers but to their interdependence.  The House alone can impeach an officer of the federal government.  Impeachment means accusation or indictment, parallel to the power of a grand or petit jury.  Under the British constitution the House of Commons was regarded as “the grand inquest of the nation”; as the most democratic branch, the one most frequently elected, the United States `house of commons’ indicts officers in the name of the sovereign—namely, the American people, unencumbered by any dynasty or aristocracy.  This provides for the independence of the House from all other branches, including the other legislative branch.

But, once impeached, the accused officer then has his day in court, so to speak, not in the House but in the Senate; further, presiding over that trial will not be any senator but the Chief Justice of the United States.  This illustrates and provides for the interdependence of the three branches.  Without interdependence, the American government would feature branches not merely separated but isolated from one another.  Each branch would go its own way, leading to governmental incoherence—to what Publius calls, in another connection, a hydra or many-headed monster.  The incompetence of the Articles of Confederation Congress would reappear, albeit in a more complex, interesting, and elegant form.

As intended by the Framers, impeachment and conviction of wayward federal officers has proven rightly difficult but possible in cases of clear malfeasance.  Removal from office has remained mostly in the best hands—namely, the people themselves, who elect, re-elect or dismiss their representatives in free elections.

Article 1, Section 3, Clause 1

“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

Publius famously asserted that “the science of politics” had “received great improvement” in modern times.  (Some fifty years later, Tocqueville rather more dramatically—he was French—called for “a new politics for a world altogether new”). The newness of American politics and of American political scientists consisted of two things: first, our freedom from rule by monarchic dynasties and titled aristocrats; second, our freedom from the already formidably centralized government of Europe.  The “New World” that Europeans had `discovered’ was new to them; what they had discovered was of course a very old world populated by Amerindian nations and tribes.  It was new to the Europeans.  The real newness of the New World arose from the politics of the European settlers, governing themselves largely unsupervised by European ruling classes and institutions.

Freedom from monarchs and aristocrats meant that Americans could found a regime not seen since antiquity, a republic in which the people were sovereign, with no admixture of any families or classes that claimed a superior right to rule.  For example, although most states required property ownership of voters and of office-holders, nothing but ill luck or incapacity barred today’s pauper from property ownership and full citizenship rights tomorrow.  The socially egalitarian regime of the United States could better reflect the natural equality of human beings enunciated in the Declaration of Independence, vindicating in the revolutionary war for independence.

Political communities coalesce not only in the form of their regimes.  They also form themselves as relatively large or small societies in terms of population and territory and as relatively centralized or decentralized with respect to their ruling structures.  The polis of ancient Greece, small and centralized, contrasted sharply with the contemporary empires of Persia and of China—huge but decentralized entities which gave their provinces substantial latitude for self-government because it had to.  In antiquity, no ruler commanded a ruling apparatus that could do much more than exact tribute from the peoples it conquered, quell uprisings, and defend imperial borders.

The modern state changed this.  Envisioned in principle by the Italian Renaissance writer, Niccolò Machiavelli, and put into practice by the Tudor dynasty in England, the Bourbon dynasty in France, and many others, the state combined some of the size of an empire with the centralization of the polis or `city-state.’  With their standing, professional armies funded by revenues collected by state employees or `bureaucrats’ from societies whose energies were funneled into commercial acquisition, and industrial productivity spurred by the new, experimental science aiming at the conquest of nature—all guided by reformed financial institutions—states quickly became the most powerful polities ever seen.

The American founders needed to frame a modern state in order to defend American citizens from the statist empires of Europe that still bordered them to the north and south, and also from the still-powerful Amerindians in the west. As we know, they wanted a republican regime for this state.  But could a centralized, modern state have a republican regime (and keep it, as Franklin pointedly remarked)?  Did the centralized ruling apparatus of modern statism not lend itself to the rule of the one or of the few?  European statesmen thought so; for the next century, they expected the new republic to implode.  On occasion, it very nearly did.

The invention of statesmen devising a new political science for a new world, the United States Senate answers these questions, both with respect to the regime of republicanism and the polity of statist confederalism.

In the Philadelphia Convention, the framers eventually agreed that the unicameral legislature of the Articles of Confederation should be replaced by the bicameral legislature that had been most copiously advocated by John Adams in his treatise, Defence of the Constitutions of the United States.  Gouverneur Morris of Pennsylvania argued for bicameralism as a pillar of what Aristotle and other classical political philosophers had called a `mixed regime’—one that balanced the rule of the few who are rich with the rule of the many who are poor.  The Senate, Morris said, ought to represent the interests of the commercial oligarchies consisting of urban merchants and financiers as well as country gentlemen.  The House ought to represent everyone else—particularly the middling classes of small farmers and shopkeepers.  “The two forces will controul each other,” providing “a mutual check and a mutual security,” Morris asserted.  The British Constitution exemplified such a mixed regime, albeit with a House of Lords—titled aristocrats—not American-style commoners who happened to be wealthy.  John Dickinson of Delaware hoped that the Senate would “bear as strong a resemblance to the British House of Lords as possible.”

James Madison of Virginia saw the regime implications of the Senate more clearly.  The Senators would represent no particular class or caste; they would represent the constituent states of the United States.  Without titles of nobility (banned in the Constitution) or any set level of wealth, the Senators as such would have no interests separate from those of the people.  The Senate therefore would fit easily into a pure or unmixed republic.  At the same time, the six-year terms of office would lend the Senate some of the virtues of an aristocracy: steadiness of purpose, the tendency to take a longer view of things that that likely among the representatives in the more democratic House, with their biannual re-election worries.

The design of the Senate also addressed the dilemma of statism.  Under the Articles of Confederation, the country had suffered from the inefficiencies, injustices, and dangerous of excessive decentralization.  At the Convention, however, delegates from the smaller states in the Confederation feared relinquishing any more of their sovereignty, fearing domination by the large states.  The Framers had already tied the House to the democratic principle of proportioning the number of representatives from each state to the size of its population.  Large-state delegates advanced the Virginia Plan: a bicameral legislature, membership of both houses being determined by population.  Small-state delegates countered with the New Jersey Plan, which would have retained the Articles of Confederation’s unicameral legislature, with one vote per state.  All accounts of the Convention emphasize that the debate between small-state and large-state delegates consumed more time and energy than any other item.  How could the small states defend themselves in the new legislature without sacrificing the just, republican claims of the large states?

The answer—called the Connecticut Compromise because advanced by Roger Sherman of that state but also propounded by Dickinson—stipulated bicameralism but with two different modes of election that satisfied both sides and also guaranteed the independence of one house from the other.  If the Senators were selected by the House, the Senate would have no independence and bicameralism would be nominal; if Senators were selected by voters in each state they might prove better demagogues than statesmen.  The Compromise established that state legislators choose the senators.  The legislators would have every reason to send their ablest men to defend the interests of their state in the national capital—men of “distinguished characters,” as Dickinson put it.  For his part, Sherman and George Mason of Virginia argued that confederal union must give each state—especially the small ones—the means of defending themselves within the national councils.

Setting the number of each state’s senators at two accomplished all of these purposes.  As John Randolph of Virginia argued, a Senate smaller than the House would be “exempt from the passionate proceedings to which numerous assemblies are liable”; the more intimate chamber would conduce more to deliberation than to verbal pyrotechnics.  This comported with the `aristocratic’ character of the Senate.  At the same time, delegations of two senators instead of one reduced the risk of a state being disenfranchised by accident or illness; two senators voting individually and not as a bloc precluded the possibility of a deadlocked (1-1) vote, which also would effectively disenfranchise a state on those occasions when senators from the same state disagreed.  Finally, giving every state an equal number of senators calmed the fears of the smaller states; confederalism would sustain them, not overwhelm them.

By designing the United States Senate, the Framers thus addressed both the `regime’ question and the `polity’ question.  The Senate reinforces the republican regime by providing an institutional platform for deliberation and steadiness of purpose that a large, unicameral legislature might lack.  The Senate also reinforced a confederal polity—a modern state sufficiently centralized and powerful to defend itself in a dangerous world, but sufficiently responsible to its constituent political parts to prevent that centralized power from usurping the right and duty of self-government.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

Posted in Analyzing the Constitution Essay Archives | 7 Comments »

7 Responses to “February 28, 2011 – Article 1, Section 2, Clause 5 and Section 3, Clause 1 – Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

  1. Ron Meier says:

February 27, 2011 at 10:31 pm

Thanks Professor Morrisey; I found the discussion on the Senate to be especially enlightening.

I wonder how different things might be today if the original intent of the method of choosing Senators were adhered to instead of changing that method to election by the same method as Representatives are elected? For example, would the extensive use of Federal mandates (education, highway construction, etc.) have passed the Senate if the states, rather than the people, were represented in the Senate?

  1. Ralph T. Howarth, Jr. says:

February 28, 2011 at 12:26 am

@Ron Meier, not to mention the all-around carrot and stick methods of regulation over areas Congress is not granted power to do by the states. Our statesmen go to Washington D.C. to have to endure a system of inducements, bribes, and compromise in order to get money that left their state to come back and fund what are local affairs within their state. If money leaves the state to only come back for municipal affairs then something is out of whack. All taxes used to be collected by the states themselves and then paid out of the state’s office to the US Treasury. We ought to go back to that to where people just file one income tax form with their state that pays the federal income tax in some percentage out of the state tax. That way the states pay the taxes to the federal like they used to and it will be the states the hold the purse strings. With such an arrangement then much of the current carrot and stick methods of the federal government would subside; that, and restoring the election of Senators by state legislatures.

Prof. Morrisey’s expository essay reminds me of how the terms “confederal” and “federal” were used so interchangeably. I sought to find a difference and picked up on two characterstics that differentiate the two:

1) A confederacy tended to not have delegated legislative powers in a central government,
2) and likewise tended to have a legislature convened on an as needed basis.

Otherwise the two terms were rather interchangeable in political science.

  1. Janine Turner says:

February 28, 2011 at 1:40 pm

I thank you Professor Morrisey, for your wonderful essay today! I personally feel so lucky to have the opportunity, as the co-chair of Constituting America, to not only be hosting this forum but to be learning from it, as well!! I never knew that in the Articles of the Confederation the legislative, executive and judicial branch all operated under one body – the congress. It is equally fascinating to concretely understand the amazing forethought of our founding fathers regarding the impeachment process – the independence of the people’s house yet the interdependence of the subsequent actions once an impeachment was initiated. The house initiates it, the senate holds the proceedings and the Chief Justice of the Supreme Court presides over it. Amazing! Once again, this process regarding impeachment reiterates the importance of three independent branches that must yet integrate to govern. Re: Article 1, Section 3, Clause 1 – I find the process of how they came to a compromise compelling. I’ve always known of the “great
compromise,” I now know it was the “Connecticut Compromise” due to Roger Sherman of Connecticut. It is interesting to understand the interpretations of Gouverneur Morris’ insights, then Madison’s and finally Sherman’s, not to mention John Adam’s inspiration of the bicameral
legislature! Divine providence, mixed with the talents of brilliant, learned men, both saved and lead the struggling country through it’s infancy. A republic was nurtured through it’s adolescence – now in adulthood – can we the people keep it? At this point, we can only keep it, through knowledge and sacrifice that parallels the passions of our founding fathers. Thank you Professor Morrisey and to all of you who are joining us! Spread the word about this forum!

No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.”

  1. ThreeDogs says:

February 28, 2011 at 2:35 pm

I have to echo the sentiments of both Ralph and Ron in wondering what things would be like today without the 17th amendment. Looking forward to that discussion down the line.

Thanks Mr. Morrisey!

  1. Cutler says:

February 28, 2011 at 6:49 pm

The essay was interesting and enlightening, but I love the comments by Mr. Meier and Mr. Howarth. But no, that would be too close to the intentions of the Founding Fathers for the present Regime to tolerate. So for now we must use the present method to slowly take back the Senate with strong conservative leaders who, along with the public will take back America from those who would tear away its foundations.

  1. zac allen says:

February 28, 2011 at 7:58 pm

Well… The senators to this day should be sent there by our legistlature. Its what kept Federalism intact. That way they would be sent there representing the states an its best interest… if they didn’t they could be recalled. i.e… The bank bailout TARP resolution. Anyway…the 1930′s took a grat leap away from what our founders intended. As a side note…. Every time the media or politicians call us a democracy, they should be corrected, and remind them we are federal republic, with representive democracy….. Not mob rule

  1. Anglo says:

March 1, 2011 at 9:22 am

No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.” in comparison to-Separated, balanced, but also interdependent branches of government, each exercising one of the three powers, could prevent tyrannical government without preventing firm government.

Such is the folly of the two party system when at any time it can hold dominance over any two of the three branches of government. Such as has and is being experienced today as there are sufficient grounds for impeachment to be exercised as concerning the executive branch.

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Article I, Section 01 of the United States Constitution

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Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

Article I, Section 1 : 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

The Constitution of the United States established three separate branches of the federal government, namely the legislative branch, the executive branch and the judicial branch. Superficially, therefore, one might think that it was a matter of chance as to the order in which each branch would be outlined and defined in this founding document.  Such thinking, however, would be incorrect.  The Founding Fathers did not write the Constitution without careful reference to the prior scholarship of Great Men, and without reference to the history of all prior republican forms of government.  James Madison of Virginia, in particular, drawing heavily upon materials sent to him from Paris by Thomas Jefferson, made certain that the Constitution evolved from the past experience of all the republics that had failed, and would not be written out (as would later be the case with the disastrous French constitution) as an act of constructivist rationalism.

John Locke’s seminal book, Two Treatises of Government – the book that provided the intellectual justification for England’s Glorious Revolution of 1689 – provides the rationale for placing the legislative branch of government at the very beginning of the Constitution: ‘The great end of Men’s entering into Society, being the enjoyment of their Properties in Peace and Safety, and the great instrument and means of that being the Laws establish’d in that Society; the first and fundamental positive Law, which is to govern the Legislative it self, is the establishing of the Legislative Power;…This Legislative is not only the supream power of the Commonwealth, but sacred and unalterable in the hands where the Community have once placed it; nor can any Edict of any Body else, in what Form soever conceived, or by what Power soever backed have the force and obligation of a Law, which has not its Sanction from that Legislative, which the publick has chosen and appointed.’ (Locke, II, para. 134)

The Founding Fathers wisely embraced Locke’s argument establishing the legislature as the central pivot of any social contract through which individuals would consent to place their lives, liberties and properties under the protection of a civil or political society.  It is no accident that Article I of the United States Constitution deals first with the legislature.  Although commentators frequently describe the three branches of government as ‘separate but equal’, the Constitution is silent on that issue.  Although the Founders designed the three branches to be inter-connected, each branch checking the power of the others, they surely relied on Locke’s Second Treatise in recognizing the legislative branch as the fulcrum of the social contract.

The decision to separate the three branches, as defined in Articles I-III, by no means was set in stone when the Convention first assembled in Philadelphia. James Madison, in particular, was deeply impressed by the 1765 Commentaries of William Blackstone, who favored a single unified branch system: ‘It is highly necessary for preserving the balance of the constitution, that the executive power should be a branch, though not the whole, of the legislature.  The total union of them, we have seen, would be productive of tyranny; the total disjunction of them for the present, would in the end produce the same effects, by causing that union, against which it seems to provide.  The legislature would soon become tyrannical, by making continual encroachments, and gradually assuming to itself the rights of the executive power.’ (Blackstone, Commentaries, 1, 149)

Following up on this argument, James Madison while awaiting the arrival of other delegates, etched out a Virginia Plan that envisaged one branch only – the legislative branch.  This branch would be responsible for appointing the executive and the judiciary, although these legislative agents jointly would be empowered to veto legislative decisions under certain circumstances.  However, even such vetoes would be subject to legislative override by some unspecified super-majority.

According to the Virginia Plan, there were to be two chambers of the legislature (a bicameral legislature). Each state would be represented in each chamber in proportion either to its financial contributions or to its number of free inhabitants.  The small states perceived such an arrangement to constitute an inordinate potential threat to their liberties by some effective coalition of the more populous states.  In the Connecticut Compromise of June 29, 1787, the delegates abandoned the Virginia Plan in favor of a bicameral legislature in which the lower chamber (The House) would be based on state populations and the upper chamber (the Senate) would have equal representation.  In reaction to this Compromise, James Madison etched out an ultimately successful case for separating the three branches of government as added checks and balances against the greatly-feared forces of faction.

The question whether the legislature should be composed of a single chamber (unicameral) or two chambers (bicameral) was far from fully resolved at the outset of the Convention.  When George Mason proclaimed to the gathered delegates that ‘the mind of the people of America’ was ‘well settled’ in its attachment to the principle of having a legislature with more than one branch, he was not truly asserting that the matter was beyond contention.  True, eleven of the thirteen states enjoyed bicameral legislatures. However, the Continental Congress consisted of but a single chamber and Pennsylvania, host to the Convention (and the home of the First American, Benjamin Franklin), operated with a unicameral legislature.

Ironically, the major forces in favor of bicameralism at the Convention were the example provided by Britain on the one side and the colonial experiences of the People on the other.  On the one side – and despite the War of Revolution – there lingered a long-standing admiration for the British constitution, at least in its mythic, uncorrupted, form.  From this perspective, the vision of a truly balanced legislature, government, and society gave special authority to the British model.  On the other side, most of the colonies had already developed an upper legislative chamber out of their governors’ councils, which typically represented the concentrated power of great landlords and wealthy merchants.

For persons of property, as all the delegates to the Convention assuredly were, an upper chamber that might check the predations both of a covetous popular assembly and of an aggrandizing executive was especially attractive.  For the populist-minded, the check provided by the upper chamber on executive powers was also not without its attractions.  Thus, the case for bicameralism could be argued both from a quasi-aristocratic and from a profoundly-republican point of view.  Thus it came to pass that discussion of a second upper chamber presumed that its’ membership would be smaller, that members would hold longer terms of office, and that members would be more select, than in the case of the lower chamber.

The lower chamber (the House of Representatives) thus came to be viewed as an embodiment of the popular will, an assembly of representatives who would come close to being reflexes of the people.  Such a body was widely viewed as a necessary foundation of popular government based upon consent.  Standing alone, however, the reflexes of such a body might become as passionate, tyrannical and arbitrary as those of the people that it represented.  An upper chamber (the Senate), capable of checking the foolish or irrational impulses of the population at large, could be viewed as an essential safeguard to the lives, liberties and properties of those who otherwise might be exposed to the untrammeled excesses of the popular will.  The later descent of the French Revolution – with its over-simplified constitutional settlement – into tyranny, bloodshed, and ultimately into the dictatorship of Napoleon Bonaparte, would amply justify these reservations advanced so serendipitously in 1787 by delegates to the Philadelphia Convention.

Eventually, the grand design fell into place in Philadelphia and, following a great national debate, was ratified into a magnificent social contract.  Article I, Section 1 of the United States Constitution merely sets the stage.  The full play unfolds in the remainder of this most precious of all constitutional documents.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia.  He is author of Liberty and the State (The Locke Institute 1993) co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government (The Locke Institute and the Institute of Economic Affairs 2009) and the author of Never Let A Good Crisis Go To Waste (The Locke Institute 2010).  For further details see www.thelockeinstitute.org

22 Responses to “February 22, 2011 – Article 1, Section 1 of the United States Constitution – Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia”

  1. Ron Meier says:

February 22, 2011 at 12:39 am

There are some excellent points in this essay to keep in mind as we watch events develop in the Middle East. We can see the passion of the people at work, but are there checks in place that will “safeguard the lives, liberties and properties of those who otherwise might be exposed to the untrammeled excesses of the popular will.” Also interesting to watch is how the checks in the state systems work to constrain the passions of the populace in Wisconsin and other states that will follow in Wisconsin’s footsteps as state budget problems are addressed. Very timely that we should be starting this study at this historical moment.

  1. Shannon_Atlanta says:

February 22, 2011 at 10:16 am

Thank you Dr. Rowley. It amazes me that these men created our government in a timely and relatively quick manner. Compare that to today where it takes months and months for our “leaders” to pass a budget; I am always amazed at what all they accomplished-filled with God’s will in my humble opinion!

  1. Susan says:

February 22, 2011 at 10:18 am

I found it interesting the evolution of the Senate. Out of the House of Lords via the wealthy to a voice of the States as a corporate entity as a counter balance to the tendency of democracies to devolve into mob tyranny.

  1. Shannon_Atlanta says:

February 22, 2011 at 11:22 am

Sue, good points. I think many of us feel that our Founders hated the British system. From what I have read, they actually admired many aspects of the government-thus they borrowed from it. They also were well read on the Anglo-Saxon political system, which England had slowly gotten away from; thus men like Jefferson wanted to get some of their ways back-free will, republican government, etc.

  1. Cutler says:

February 22, 2011 at 11:38 am

The relatively novel idea of having the legislative power invested in two distinct houses shows the genius (God’s?!) at work when the Founding Fathers created the House and the Senate.

  1. steve b says:

February 22, 2011 at 4:30 pm

I did not know Pennsylvania originaly had a unicameral legislature. Our Founding Fathers were indeed true statesman. I fear we will never again have the leadership and vision our Founding Forefathers had.

  1. Charles K Rowley says:

February 22, 2011 at 7:02 pm

It is indeed quite remarkable how well educated and knowledgable many of the Founding Fathers truly were. At a time when books were scarce, distances hard to travel, and in a country that had experienced a major internal war, James Madison, Benjamin Franklin and others somehow made the effort to read and understand why past republics had always failed. On that basis they were able to craft a Constitution that would survive at least for two centuries, though now, of course, it is tattered and torn. In 2011, when books are easily available and the internet immediately accessible, how many American politicians, from the President down, are well read in such literature. Until January 2011, how many elected politicians had actually read the Constitution? Sadly, knowledge appears to regress as the opportunities to access it expand. I am sure that Benjamin Franklin would have had an amusing way of making that point!

  1. Ralph T. Howarth, Jr. says:

February 22, 2011 at 7:52 pm

Part of the end run of the bicameral system came out of the right of sufferage. It became a grand principal that it is unjust to demand citizens to obey laws that they have no say in the writting and amending of such laws. So it was that the rights of land owning free-holders that were 90% in the majority at the time balanced against the future influx of non-land holding immigrants that was expected to come. The Founders thought it best that the bicameral system would be predominant land-holders in one house and populist commoners in the other house. This also did away with the “mixed government” feature of Parliament where the caste system of seats designated to caste members of society to represent the various interests of society. Congressmen now are elected upon full popular vote of the electorate in their district regardelss of class.

As for the presupposition that that the THREE branches of government are separate and EQUAL, the legislature is actually the most powerful branch of government. In Federalist #51 James Madison said: “But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates.”

The legislature indeed is the most powerful branch for it has more checks on the other branches of government than any other branch. First, it passes statuatory law. The executive cannot act nor the judiciary pass judgement without laws to act on. And if the judiciary makes an opinion that is in a quandary with the law, Congress simply can pass more statuatory law. Congress consents to appointments of officers in the other branches; and has the power to impeach and remove the same. Congress has the power to tax and appropriate funds and so can effectively defund any operation of government and is another form of congressional oversight on the other branches of government. At the last, Congress has the power regulate the appellate jurisdiction of the Supreme Court such that Congress may deny the SCOTUS of hearing particular cases among the states. And contrary to popular opinion: judges do not make or repeal laws. Judges simply decide whether or not one party in a case suffers harm from another party and then gives an opinion why they decide as such. Court decisions are not law therefor they are called OPINIONS.

  1. Debbie Bridges says:

February 22, 2011 at 9:01 pm

It is interesting to watch the three branches of Government in today’s political arena. Health Care for instance. This was originally passed in the Legislative but with the change of political power in the House and the will of the people the House has voted to defund it. Hopefully the Supreme court will hear the case and rule it unconstitutional. At the same time though, I worry because the President seems to circumvent the Legislative Branch through Executive Orders and appointing Czars not subject to the normal Advise and Consent process of the Senate.

  1. zac allen says:

February 23, 2011 at 12:11 am

This is an interesting discussion at this very moment in time in this country. We have educators, media pundints, and all sorts of people talking about democracy in action. Our Founders knew through the lens of history, that true democracy , mob rule, was no way to run a government. It eventually destroys the individual, as does collective bargaining.
Representative democracy with a republican form of Government is what they created…. and now we have Progressives trying to undermine that principle. Bi-Cameral houses with each a distinct role. Incredible… isn’t it….. sorry for the skipping around

  1. Charles K. Rowley says:

February 23, 2011 at 8:00 am

Ralph, Debbie and Zac all make great points on the issue of checks and balances and the role of the legislature. Before FDR, the constitution worked well. Then the legislature began to divest regulatory powers to the President and the Supreme Court buckled under the threat to increase its numbers with progressive appointees. In consequence, the balance shifted. Now the President is far more powerful than was ever envisaged, and the Supreme Court offers excessive deference to the legislature when reviewing laws for their constitutionality. Yet, save for a few bad amendments, the Constitution’s wording has not changed. That is the problem. How can America move back to the true Constitution under such circumstances?

  1. Janine Turner says:

February 23, 2011 at 11:45 am

Dr. Rowley, I thank you for your most informative essay!
It is worth noting how our founding father’s based their decisions, regarding the drafting of the Constitution, on two basic principles: knowledge and history.
They were well read and acquainted with what had worked and what had not, in regard to government, in the past. They also were well acquainted with superb political and philosophical works of great minds throughout history. Their prudence was based on practical precedents.
The checks and balances and bicameral legislature are of brilliant design and most relevant to today as we: 1) still practice it today 2) need to vigilantly maintain these principles.
Only with a keen knowledge of our Constitution’s contents can we preserve our liberties. I thank you for your generosity of time, as it helps me to understand more clearly my call to action!

  1. Ron Meier says:

February 23, 2011 at 11:54 am

re Dr. Rowley,
And, add to that the significant increase in the number of Czars in the current White House. This seems to be adding even more power within the office of the President. Should the Congress do something to disallow power to these czars?

  1. Jon says:

February 23, 2011 at 2:24 pm

May I offer a few items in response to “How can America move back to the true Constitution under such circumstances?”
Thomas Jefferson, 1825 in response to William B. Giles who expressed his concern over encroaching federal power.

“I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of our Government is advancing toward the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic; and that too, by constructions which, if legitimate, leave no limits to their power. Take together the decisions of the federal court, the doctrines of the President, and the misconstructions of the constitutional compact acted on by the legislature of the federal branch, and it is but too evident, that the three ruling branches of that department are in combination to strip their colleagues, the State authorities, of the powers reserved by them…”
“And what is our resource for the preservation of the Constitution? Reason and argument? You might as well reason and argue with the marble columns encircling them. The representatives chosen by ourselves? They are joined in the combination, some from incorrect views of government, some from corrupt ones, sufficient voting together to outnumber the sound parts…”

“We must have patience and longer endurance then with our brethren while under delusion; give them time for reflection and experience of consequences; keep ourselves in a situation to profit by the chapter of accidents… meanwhile, the States should be watchful to note every material usurpation on their rights; to denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary yielding… This is the course which I think safest and best as yet.”

William B. Giles took Jefferson’s advice; he ran for and won the Governorship of Virginia in 1827.

Jefferson alluding to our success, the law of nature IE; Locke.
“A great revolution has taken place at Paris. The people of that country having never been in the habit of self-government, are not yet in the habit of acknowledging that fundamental law of nature by which alone self government can be exercised by a society. Of the sacredness of this law, our countrymen are impressed from their cradle, so that with them it is almost innate. This single circumstance may possibly decide the fate of the two nations.”. 1800 Thomas Jefferson

Adam’s regarding education, including the law of nature IE; Locke
“Let us tenderly and kindly cherish, therefore, the means of knowledge. Let us dare to read, think, speak, and write. Let every order and degree among the people rouse their attention and animate their resolution. Let them all become attentive to the grounds and principles of government, ecclesiastical and civil. Let us study the law of nature…” John Adam 1765

  1. Ray Simoneaux says:

February 23, 2011 at 2:45 pm

Janine, I found out about Constituting America by watching Freedom Watch. Thank you and your organization taking on the project. I am truly amazed of just how many people I talk with daily, who have never read the Constitution ( I personally have three pocket size editions; home, office and vehicle). I look forward to learn more of the analysis of OUR Constitution!

Dr Rowley, your reply to Ralph, Debbie and Zac is exactly how I feel about the Constitution! I really get frustrated when talking with friends or co-workers who “believe everything the see or hear on the news.” I often get strange looks/comments when those people close to me, hear me make the statement, “Where in the Constitution does it give them (the politicians) the authority to do that?” I have come to the conclusion that they have never read/understood the Constitution, therefore they don’t know what our politicians can/can’t do. Thank you for your assistance to the Constituting America Organization in their project.

  1. Shelby Seymore says:

February 23, 2011 at 4:41 pm

Again, I agree with Cutler. They actually set up this government out of the Bible in Leviticus. This wasn’t a just a remarkable appearance of a government that worked. It’s not the big bang theory! There was Divine Providence and they knew it.

  1. Charles K Rowley says:

February 23, 2011 at 4:47 pm

The insights offered by Janine and Jon are very important at this time. The checks and balances written into the Constitution serve a great purpose in slowing down the popular impulse. But this works both ways. When the political situation becomes bleak, as it surely was prior to November 2010, the checks and balances slow down constitutional recovery. The good constitutionalist acknowledges this and bides his time. Any true reversal of fortune must await November 2012, a change in President and a change in Senate majority. This can only occur if key actors understand the Constitution and work cautiously to reinforce constitutionalism rather than to skirt around it. This will irritate the impatient, but the long-run objective must always be kept in mind. In the meantime, some Republican Governors are performing well in their attempts to re-assert states’ rights.

  1. Ralph T. Howarth, Jr. says:

February 24, 2011 at 5:08 am

Chares K Rowley said: How can America move back to the true Constitution under such circumstances?

Tom Woods has an answer to the question: State Nullification
http://www.tomwoods.com/learn-about-state-nullification/

The premise of the State of Virginia ratifying the U.S. Constitution was on the very question of what if the general government department assumes powers not given in Art 1. Sec 8? The answer was that the State of Virginia is a sovereign state free to disregard such federal acts.

  1. Charles K. Rowley says:

February 24, 2011 at 10:54 am

Ralph’s point is exactly correct. But the principle was overriden by the War of Northern Aggression and the victory of the North over the South. Since then nullification has not proved to be an attractive option for States even when the rights of their citizens have been seriously eroded by the federal government.

  1. Ralph T. Howarth, Jr. says:

February 24, 2011 at 5:20 pm

@Ray Simoneaux,
My new favorite phrase for townhall meetings is:
“3/4ths the states never ratified such a measure!” More astonished looks.

@Charles K. Rowley,
Another remedy is another Constitutional Convention. Three times we came rather near to having one. Just the imminence of a ConCon can make Congress react. There is a lot of anxiety about having one as there really is no agenda that can be enforced on a ConCon. On the other hand, much of the “horse and buggy” provisions in that 1787 instrument is exploited by political graft no matter whose administration is in office. I have a draft instrument coined “Congress 2.0″ of nearly two dozen amendments which includes a confederate vote measure where a 1/5 dissent on germaneness of a bill, or a bill riding measure, in both federal houses then remands the measure to the states for a confederate vote of 2/3rds majority. A compact soveriegnty of states measure. I also have a lame duck provisional legislation and adjournment/recess appointment and pocket veto bypass amendments, and measures to assure members of Congress spend more time with their constituents; and for Senators, the constituency is the state capitol, affording remote visual conferencing be allowed for members to vote. It sure could use more scrutiny and maturation with tweaks and polished.

  1. Seth Richardson says:

February 25, 2011 at 9:52 pm

This section, in conjunction with Article II, Section 1 and Article II, Section 3, delineating the powers and duties of the President are of particular interest at this moment, what with the President deciding all on his own that the Defense of Marriage Act (DOMA) is “unconstitutional” and his directing Attorney General Eric Holder not to further defend it in court.

The question of a President’s authority to refuse or fail to enforce duly-enacted laws of Congress is a serious one which I address in some detail at my blog, The Broadside.

The essence of the problem is that if the President has authority to decide for himself what laws are constitutional and what laws are not, he is usurping both the legislative authority of Congress and the judicial authority of the Supreme Court.

It is my view that this comprises an impeachable offense. This very matter was the subject of an impeachment of Andrew Johnson in 1868. Johnson only survived removal by the Senate by one vote.

As for Holder, he is employed by the United States, which is the People, to represent our interests in court, and to zealously defend ALL laws duly enacted by the Congress, not just the ones he wants to defend or that the President tells him to defend.

He should therefore be disbarred and fired.

  1. Charles K. Rowley says:

February 26, 2011 at 11:35 am

Ralph’s suggestion about a constitutional convention has been discussed recently with respect to the balanced budget amendment proposal. As yet, it falls short of the number of states (two-thirds) required to call the convention. Ralph is correct that even the threat of such a convention tends to bring Congress to heel. The risk is whether a convention – once called – can be constrained to the issue it is supposed to address. After all the 1787 convention ignored its mandate, which was to reform the Articles of Confederation.

Seth’s concern about Presidential overreach is really important. If the United States enjoyed an independent judiciary that is precisely where the federal courts should intervene. But they are filled with inadequates who will not challenge a President. Impeachment is now an entirely political issue and the Congress does not have the votes to impeach and convict a Democratic President. So, such an attempt would be a huge waste of time. Holder holds his position pretty much at Obama’s discretion. And there is not a snowflake’s chance in Hell that Obama will remove a carefully selected ‘brother’ at this time.

 

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