Against the arbitrary rule of George III, the American Founders opposed the rule of law. On the most fundamental level, in their Declaration of Independence, they appealed to the laws of Nature and of Nature’s God against tyrannical violations of the unalienable rights established by those laws. Eleven years later, in designing the human, conventional, constitutional law that reframed the federal government, the Founders established a republican regime intended to prevent the return of arbitrary rule to their country.

Of the three branches of government, they put the legislature first; understanding that the perfect, divine Lawgiver established the rule of His laws in nature, the Founders knew that procedures established for imperfect, human lawmakers needed to keep such persons directed toward the defense of the natural laws. Congress also ‘came first’ for a historical reason: In our first constitution, the Articles of Confederation, the legislature was the only branch of government. Not only was Congress itself unicameral, but the executive and judicial powers were folded into it.

Such legislative dominance had seemed to make the rule of law unquestionable, but the contrary turned out to be true. Under the Articles, laws passed by Congress couldn’t penetrate into the states to govern individual citizens. This left an apparently formidable, unicameral federal legislature dependent upon the states for revenues and for enforcement. The purpose of the rule of law is to place a layer of protection between the persons enforcing the commands of government and persons ruled by those commands. But the rule of law is nonetheless a form of ruling. Under the Articles, the states amounted to a second, political ‘layer’ of authority; the federal government could enact laws but it could not rule by those laws. As Publius writes in The Federalist, “Government implies the power of making laws”; it also implies the power of enforcing them.

If the federal government shall truly govern, however, additional safeguards needed to be built into it. A unicameral legislature that made laws but also enforced them and judged cases arising under them, reaching down to individuals within each state, might behave like a many-headed version of George III. Better, then, to follow the longstanding recommendation of John Adams and establish a bicameral legislature. With the legislators in one house proportioned to the population of the states, the popular or democratic character of American republicanism would survive. Although women couldn’t vote in most states, the percentage of adults who could vote in the United States was still higher than in any other legislative body in the world at that time–far higher than in the British House of Commons, for example, whose members were elected by no more than fifteen percent of the adult population. By contrast, not only were the House members chosen by a more broadly-based electorate, but members themselves needed to meet no property requirements. Publius observes, “Under… reasonable limitations, the door of the House of Representatives is open to merit of every description, whether native or adoptive, whether young or old, and without regard to property or wealth, or to any particular profession or religious faith.”

The other branch of the legislature, the Senate, exists to protect the states, which exchanged their power effectively to veto federal legislation for a hand in making that legislation. With each state equally represented in the Senate, and with Senators elected by their state legislatures, citizens in every state could feel confident that the federal laws which would now rule them directly would not compromise the rightful powers of the states. In addition, the requirement that any proposed law would need approval of both houses, and that the senators would serve terms three times longer than members of the House, guarded citizens against what Publius calls “sudden or violent impulses” in lawmakers who might otherwise be swept up in the passions of the moment.

Although our contemporaries frequently use the terms ‘democratic’ and ‘republican’ as if they were synonymous, the Founders did not. The purpose of republican or representative government, as distinguished from the pure democracies of ancient Greece, where all acted as legislators and often as judges in the assembly, was precisely to empower reason over passion, to obtain “a cool and deliberate sense of the community,” as Publius phrased it. “Had every Athenian citizen been a Socrates”–a philosopher, a person ruled by reason–“every Athenian assembly would still have been a mob,” so powerful the passions become when human beings begin to orate at one another. Had Athens had a senate, Publius goes on to observe, Socrates would not have been put to death by his countrymen; the existence of a second seat of deliberation would have slowed things down, given Athenians time to think the matter through.

Despite their longer terms in office, and despite the property qualifications required of senators, the United Sates Senate would be no voice for an aristocracy, no House of Lords. The Constitution prohibits laws establishing primogeniture, the social and economic foundation of landed wealth. Senators may be richer than members of the House, but they are every bit as ‘common.’ All Americans are ‘commoners.’

As a final precaution, the framers of the 1787 Constitution carefully enumerated the powers of the federal government. Congressional law governs interstate and international commerce, the military (including the militia), and establishes a federal judicial system operating under what Publius calls a “uniform rule of civil justice.” Other powers remain in the states, or in the sovereign people.

Given these legal and institutional safeguards, why then do we now see such an extraordinary concentration of power in the federal government? Part of the answer may be seen in the transformation of Congress, a transformation undertaken and completed in the first seven decades of the last century, but especially between 1933 and 1969. That transformation, amounting to a partial regime change, will be the topic of the next essay.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; 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.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

11 replies
  1. Charles cartet
    Charles cartet says:

    Want to follow and learn. I have long wondered why congress allowed the president to take power not in the constitution.

    • Cathy Gillespie
      Cathy Gillespie says:

      Thank you, Charles! That is one of the topics we are exploring. We look forward to hearing more thoughts from you. Please share our study with your friends!

  2. Nan Nicoll
    Nan Nicoll says:

    Hope this reaches many Americans who, like myself several years ago, do not understand our form of government and our Constitution. About 2010 one of the first courses I took on line was Constitutiong America’s Federalist Papers. Thank you Co stituting America. I also have taken a Hillsdale College online course from William Morrisey. Thank you Hillsdale College and Prof. Morrisey.

    • Cathy Gillespie
      Cathy Gillespie says:

      Thank you Nan! We are so appreciative of your ongoing involvement and support of Constituting America and our programs! Please share our study with your friends!

  3. Ralph Howarth
    Ralph Howarth says:

    I hope one of the first legislative acts on the essay agenda is the passage of the Organic Laws act, that to this day is the beginning of the US Federal Code that has been largely ignored like a sentimental forward to a book when it is fully intended to be the governing law of federal laws.

    • Ralph Howarth
      Ralph Howarth says:

      Correction, it is the 43rd Congress that published the “Organic Laws” by resolution in Aug 1877 published in 1880 in Volume 18 of the Revised Statues of the United States after the 15th amendment was ratified. Such was apparently not an act of the 1st Congress that I had been led to believe unless something earlier can be found. Interesting, Wikipedia does not have a page for it, the Library of Congress had depaginated the Organic Laws that made it harder to find, and Google search seems to now rank territory results when it used to be easier to find the Organic Laws of the United States.

      This is significant for American Jurisprudence because the 1920’s Incorporation Doctrine of SCOTUS has advanced the notion that the 14th Amendment trumped federalism when the record is that federalism was reaffirmed AFTER the 14th Amendment’s colorful certification of ratification. [Some states had multiple votes where naysayers, in some cases, were detained and locked out of voting for ratification. Some states withdrew. Some states received modified versions of the amendment to vote on. And some states were practically made to vote at gunpoint while the gamut of the former slave states held at gunpoint were denied representation in Congress such that the rump Congress did NOT have 2/3rds majority to adopt the amendment to submit to the states.]

      How I mixed the 1st Congress in passing the Organic Law came about because authors would describe those founding documents as such. But examining the published Acts of the 1st Congress shows no such vote had come up.

  4. Barb Zack
    Barb Zack says:

    I am so excited to embark on another 90 day study! I anticipate this starting every February! Another excellent essay and a wonderful way to get started. Just wanted to say it drives me CRAZY to hear people, especially elected officials, or otherwise intelligent people, call our form of government a Democracy. A democracy implies an anarchy. I will correct anyone who calls our government a Democracy.

    Again, thank you so much for another 90 day study! Cannot wait to dive in!!

  5. Forrest Nabors
    Forrest Nabors says:

    Thank you Prof. Morrisey for kicking off the 90-day study of the Congress. Another favorite quote from the Federalist (#51) about the legislative branch is: “In republican government, the legislative authority necessarily predominates.”

  6. John Griffin
    John Griffin says:

    There was a lot going on between 1933 and 1969. The Great Depression, WWII and The Civil Rights Movement. Looking forward to tomorrow’s essay.

  7. Barb Zack
    Barb Zack says:

    Excellent essay! So excited for the start of another 90 day study! I have learned so much over the years of doing these studies. I look forward to learning and contributing via comments. Thank you so much for the opportunity

  8. Publius Senex Dassault
    Publius Senex Dassault says:

    Welcome back 90 day essays! Great kick off.

    The bicameral legislature was a vigorously debated topic during the Federal convention. Large states preferred a legislature based on population. The small states wanted and eventually insisted on equal representation for each state. Slave states insisted on slaves being counted in their census. So through the summer of 1789 the convention debated, wrangled, and philosophized about the proper construction on the legislature.

    Politics, that is reasoned compromise, eventually won the day. Small states would not ratify a constitution where they subject to large states dominance, hence the Senate. Large states were not going to let the minority few dictate laws to them, hence the House. All conceded, some willingly, some reluctantly, some with grave concern the 3/5ths census of slaves.

    In the end, except for the slave compromise, the Founders gave us an excellent government. I look forward to future essays to understand more intimately what has been done to and with this most excellent foundation. Have we like the wise man who built the house on rock and preserved that solid foundation of Rule of Law, or has the rock been slowly replaced with shifting sands of arbitrary rule of law.

    Glad the 90 day essays are back. Booyah.



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