March 1: Why The Legislative Branch Is Listed First In Article I Of The United States Constitution – Guest Essayist: James D. Best

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The Constitution is comprised of seven articles. Article I defines the powers of the Legislature, Article II defines the power of the executive, and Article III defines the powers of the judiciary. The remaining short articles handle everything that didn’t fit within branch powers.

In the closing days of the Federal Convention, now called the Constitutional Convention, the Committee of Detail delivered twenty-three disjointed sections to the Committee of Style. Gouverneur Morris volunteered to edit the language of the resolutions. He also consolidated the sections, organized the presentation, and prepared a preamble. He wrote with such consummate skill that his words have reverberated through time and distance. Morris took the clumsy and perfunctory preamble from the Committee of Detail and crafted a beloved fifty-two words opening that may be the most important sentence in political history.

Morris cannot take credit for “We the people,” but he can take credit for “We the People of the United States.” The Committee of Detail preamble used “We the people of the States of …” and then listed all thirteen states.

During the convention, Morris argued for a strong executive. Only Alexander Hamilton may have been a stronger nationalist. As the “Penman of the Constitution,” he could have started with executive powers to emphasize the powers of the president. He did not. Why? Four considerations may have led him and the Committee of Style to list legislative powers first.

  1. The Congress under the Articles of Confederation sanctioned the Federal Convention.
  2. The Federal Convention needed Congress to forward the Constitution on to the state ratification conventions.
  3. People would be more comfortable with a strong executive after they saw legislative checks on executive powers.
  4. Congress would be the first branch of the new government. It would validate the election of the president, who would then nominate justices to the Supreme Court.

Congress sanctioned the Federal Convention to recommend amendments to the Articles of Confederation. Instead, the convention invented an entirely new system of government. The convention’s sole claim to legitimacy came from Congress, and they had to get by this same body to ratify the Constitution. Despite popular misperception, the Constitutional Convention did not “ordain and establish” the Constitution. It took independent conventions in each state to accomplish that herculean task. These first two considerations required the Framers to show deference to the old Congress.

Vast presidential powers terrified early Americans. They had first-hand experience with an autocratic executive, and knew from bloody experience that it was difficult to break free from oppressive. The Articles of Confederation were sickly, but a strong president would be hard medicine to swallow. In the design, the Framers insisted on balanced power between the branches, with each branch possessing potent checks on the other branches. Safety through what we call checks and balances. Delegates to the state ratification conventions had not participated in the four months of debate and compromise. This would be all new to them … and the rest of the nation. Legislative checks on the executive might overcome some of the apprehension surrounding a powerful executive.

The Committee of Style completed another vital task. They wrote an audacious letter to Congress that told them how to implement the new government. Not a trivial matter, and in many respects, much like the chicken and egg question. Under these instructions, the sequence of the branches taking oaths of office is the same as listed in the Constitution. The letter states, “the United States in Congress assembled should fix a Day … the Time and Place for commencing Proceedings under this Constitution.” Thus, Congress first. “Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President” And President next, who would then nominate justices for the Supreme Court.

If the three branches are co-equal, then theoretically, it shouldn’t make any difference which branch is described first. Perhaps not for governance, but it made a difference in improving the atmosphere for ratification. The Framers understood that they did not possess the authority to make the Constitution the “supreme Law of the Land.” The Framers believed that power resided solely with the people, and now the people would judge their work. Would they approve? Determined and noisy opposition stood ready on the sidelines, eager to knock down anything that smelled of monarchy. The Framers were politicians. Gifted politicians. They knew the weaknesses of the Articles, the symmetry of the Constitution, and the mood of their countrymen. They took many measures to promote ratification. The sequence of the document may have been one more.

Why is the legislative branch listed first in the United States Constitution? To remove obstacles to ratification, to make acceptance easier, and to facilitate implementation.

Theodore White in his book, In Search of History wrote, “Threading an idea into the slipstream of politics, then into government, then into history… is a craft which I have since come to consider the most important in the world.” This was  the Framers gift … and it is a rare gift indeed.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

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6 replies
  1. Tony Gillette
    Tony Gillette says:

    All good information, but your opening item: “The Congress under the Articles of Confederation sanctioned the Federal Convention.” leaves out one major fact from 7 State Legislatures that you gloss over. The Annapolis
    Convention, not Congress, provided the
    political impetus for calling the
    Constitutional Convention. The delegates
    from the 5 states participating at Annapolis
    concluded that a broader convention was
    needed to address the nation’s concerns.
    They named the time and date
    (Philadelphia; second Monday in May).
    The Annapolis delegates said they were going
    to work to “procure the concurrence of
    the other States in the appointment of
    Commissioners.” The goal of the upcoming
    convention was “to render the constitution
    of the Federal Government adequate for
    the exigencies of the Union.”
    What role was Congress to play in calling
    the Convention? None. The Annapolis delegates
    sent copies of their resolution to
    Congress solely “from motives of respect.”
    What authority did the Articles of
    Confederation give to Congress to call such
    a Convention? None. The power of
    Congress under the Articles was strictly limited,
    and there was no theory of implied
    powers. The states possessed residual sovereignty
    which included the power to call
    this convention. Congress voted to endorse this Convention
    on February 21, 1787. It did not purport to
    “call” the Convention or give instructions
    to the delegates. It merely proclaimed that
    “in the opinion of Congress, it is expedient”
    for the Convention to be held in
    Philadelphia on the date informally set by
    the Annapolis Convention and formally approved
    by 7 state legislatures.
    Ultimately, 12 states appointed delegates.
    Ten of these states followed the phrasing of
    the Annapolis Convention with only minor
    variations in wording. Two states, New
    York and Massachusetts, followed the formula
    stated by Congress (“solely amend
    the Articles” as well as “render the Federal
    Constitution adequate”). The States, not Congress, called the
    Constitutional Convention. They told
    their delegates to render the Federal
    Constitution adequate for the exigencies of
    the Union. And that is exactly what
    they did. Let’s not forget to teach that the States have the final power to control the Federal Government.

    Reply
  2. James Best
    James Best says:

    You’re correct that the delegates to the Annapolis convention agreed to meet the following May. Madison and Hamilton were the major catalysts for the Constitutional Convention. Since the Annapolis convention failed due to lack of a quorum, Hamilton worked with Congress to obtain their “endorsement.”

    According to Madison’s notes, many speakers referenced their limited charter from congress. Granted, the counter argument from opposing delegates was that they were really free to do whatever they wanted. That said, the delegates still did not want congressional opposition to the ratification process. A show of deference was considered good politics.

    After ratification, the Constitution became the supreme law of the land. Unspecified powers were reserved to the states and the people (as eventually articulated in the 10th Amendment), but upon adoption, the United States became a single nation. Morris made this clear by replacing the list of states with “We the people of the United States.” It reminds me of Herb Brooks repeatedly asking the 1980 Olympic hockey players who they played for. He didn’t quit asking until someone said, “I play for the United States of America.”

    Reply
    • Tony Gillette
      Tony Gillette says:

      Thanks James Best! Your book helps bring this struggle back to life, and I highly recommend it. As we have become the “American” people, and not just from a select State, we’ve forgotten the powers and the role States were to play in this republican (small R) form of Government. An all too powerful central government was the fear of the day, as we see again today. The goal of the Federal convention was “to render the constitution
      of the Federal Government adequate for the exigencies of the Union.

      Reply
      • James Best
        James Best says:

        When people discuss our system’s checks and balances, they almost always refer to the three branches of the government, but the Framers also intended the states to be a potent check on the national government. As James Madison wrote, “Ambition must be made to counteract ambition.”

        Reply
  3. Ralph Howarth
    Ralph Howarth says:

    I do not see the notion that any sort of a new nation was born on the moment the 2nd constitution ratified on the union agreement of nine out of 13 states. During the American Revolution there certainly was a segment of the society who viewed the American colonies as a nation BUT early in the conflict it was pointed out by Thomas Paine in the missive Common Sense that “national Pride” had to be put aside to obtain freedom from the abuses of the Crown of the English nation.

    “Wherefore, laying aside all national pride and prejudice in favour of modes and forms, the plain truth is that IT IS WHOLLY OWING TO THE CONSTITUTION OF THE PEOPLE, AND NOT TO THE CONSTITUTION OF THE GOVERNMENT that the crown is not as oppressive in England as in Turkey.”

    Most colonists still considered themselves Englishman in the formative war years to where 1/3rd of the population remained as Loyalists, and 1/3rd neutral and remote to the conflict, and 1/3rd for breaking away; but among those who were for breaking from England, there were mixed sentiments of patriotism to the state they belonged to. As the war drew on, there was increasing sentiment of a new nation as somewhat evidenced that the 1781 Articles of Confederation proposed to the states as early as 1777 (when it was written by the titular 2nd Continental Congress hiding in York, PA) named the states severally while the peace treaty with Britain answered the question, to what is the treaty of Admiralty and Clearing, et.al., to be made to? And the answer became, the United States of America, by 1783.

    Yet, when Thomas Paine wrote that firebrand missive that General Washington had circulated around the camp, it did not call for a new nation but rather:

    “Now is the seed-time of Continental union, faith and honour. ”

    Of those who wanted to form a new nation probably recognized that the time was not ripe for it and the focus was liberty and union–baby steps–before any talk of a nation. But the term “national” became common in the American sub-conscience. In the same missive, Thomas Paine described the colonial affairs as “national concerns”:

    “The members of Congress, Assemblies, or Conventions, by having had experience in national concerns, will be able and useful counsellors, and the whole, being impowered by the people, will have a truly legal authority.”

    Then Thomas Paine described that consolidating the debt of the colonies thereby making a national debt consequently is what makes a “national bond”. Then he appealed to the sentiment that the nation of America is God-given in a plea to make it so:

    “No nation under Heaven hath such an advantage as this.”

    That was 1776, and the nation existed because Divine Providence provided it, not because a constitution was drawn, if the sentiments of the Declaration of Independence were beholden to.

    When a constitution is used as an instrument to unify what is a league of states it takes on the color of a private treaty. And as treaties go, they can be of a twenty year term, perpetual, or also with sunset clauses. The old constitution had the perpetual device for unexpired term with no sunset clause. But even without a sunset clause the practice among states is that states are no longer bound by a treaty if signatories repeatedly have abused the terms.

    The 2nd constitution does not have a perpetual term; or an expiration date, yet perpetual is then implied when there is no expiration date in treaties. The 2nd constitution yet has the sunset clause explicitly in Article V in that the union would be dissolved if the international slave trade or the 3/5ths person’s regime was banned before 1808 OR if the parties to the compact (a treaty) lose equal suffrage in the senate without their consent. To this day there are six states of the southeast seaboard that have never consented to the 17th amendment, Nevada that explicitly denounced it as unconstitutional, and two states admitted to the union after the fact that is questionable that they were free states willingly entering the union with the option to leave the United States, like the protectorate of the Philippines was permitted to leave the US (there was a time when Congress deemed Filipinos to be US citizens).

    So it is that a constitution is not what really makes a nation; but it is the American Spirit of Liberty that makes the nation. Albeit, the ratification of the 2nd constitution certainly ameliorated the national sentiment that galvanized the more in the Civil War ahead. The constitution is only a disposable instrument of government that can be dissolved (contrary to much public opinion.) At the time of ratification, nine states ratified making a new league of states out of an old league of states (a form of secession, yet peaceable). The difference between the two leagues amounted to a stronger consolidated department of state and a seated government. In a federal government, the delegates are called into session as a perpetual re-seated congress. In a con-federal government, the delegates are summoned first before there is any session in what we now know as an “emergency session” and the delegates may change hands between sessions.

    By the time the 1st Congress called into session, there were still two states holding Congress under the old constitution, and then there was the independent Republic of Vermont holding their own sessions, while the British protectorate of French Quebec was invited to the Free American Union seven times up to the ratifying conventions. Theoretically, in 1789 when the old and new union assemblies were “operating” concurrently, Quebec could have “shown up” to the open invitation of the Articles of Confederation. The difference was four weeks when Rhode Island had waited in a tavern in New York City to hold congress under the old union (only to twiddle their thumbs as North Carolina did not show up) while the new congress convened in the Federal Hall later that year. If Quebec sent delegates that merely could have been delayed by a storm, only to find Rhode Island left to go home, they may very well have been redirected to go to the Federal Hall only to find the new delegates of the new congress to also be twiddling their thumbs waiting for the new government to assemble in a quorum that was delayed a whole month. Upon arrival, it would have been an intriguing tizzy because anxious delegates of the states who had arrived would then be perplexed to entertain a new arrival, and to change their inquiry to what were the authorized commissions of the delegates of Quebec to conduct any business with the new congress. Would the agenda of the 1st Congress now change to including admitting a new state? Would the delegates of Quebec be implored to go back and ratify the new constitution? Or would those delegates think best to chase down Rhode Island who had just left because their commissions only authorized joining the old union?

    To paint even a more of a picture of just how fluid the situation was, New York had just joined the union and had not yet organized itself to be able to choose Electors. So when the 1st Congress counted the ballots for the new president, New York’s ballots were absent. New York State was hosting the congress but did not yet have the operating capacity to participate in choosing the new president!

    Reply
  4. Publius Senex Dassault
    Publius Senex Dassault says:

    Three essays, 2½ comments, a cup of coffee and ¼ piece of cake later I’m am both entertained and educated. Sweet.

    Reply

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