Legislative: Most Important Branch, Of The People, Whose Primary Role Is Lawmaking – Guest Essayist: James Legee
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The contemporary refrain on Congress is that it is the branch of the Federal Government most reviled, and least functional. Pundits and professional scholars alike speak of gridlock and partisanship; political scientists Norman Ornstein and Thomas E. Mann have decried the branch of the people in a series of books with titles like “The Broken Branch” and “It’s Worse than it Looks.”
If public opinion polling is any indication, Ornstein and Mann are more than justified in their conclusions. A visit to Real Clear Politics (as of authorship) reveals a Congressional approval rating of 15.9%, and a staggering 73.7% disapprove of the job Congress is doing. A quick search of Gallup’s historical trends on Congress and the public reveals that approval hasn’t risen above 50% since June of 2003.
To many of the framers of the Constitution, this public sentiment would seem quite alarming, especially with an incumbency reelection rate cited as high as 80%. The legislature was intended to be the branch of the people, the expression of their will, and the legitimizing feature of the new 1787 Constitution.
One of the voices most concerned with the new government being as close to the people as possible was James Wilson of Pennsylvania. Wilson emerged early as a vocal Federalist, who sought a robust national government to overcome the deficiencies of the Articles of Confederation and envisioned America as a nation that would come to dominate the North American continent. In Madison’s Notes of Debate, we find Wilson’s arguments on May 31, “Mr. Wilson contended strenuously for drawing the most numerous branch of the legislature immediately from the people. He was for raising the federal pyramid to a considerable altitude, and for that reason wished to give it as broad a basis as possible. No government could long subsist without the confidence of the people.”
Madison followed Wilson, he “considered the popular election of one branch of the National Legislature as essential to every plan of free Government.” The sentiment was broadly, but not wholly shared, as Elbridge Gerry and Roger Sherman would dissent, to say nothing of the delegation from New York, excepting Alexander Hamilton (and even Hamilton feared mob rule). Regardless, the Federalists understood the need for an energetic centralized government to right the economy, negotiate with the European powers that dominated the seas and a good portion of the North American Continent, and foremost, remedy the flaws of the Articles of Confederation.
While the Congress was to be the branch closest to the people, it was not to serve as a mirror. As Madison famously notes in Federalist 10, faction presented perhaps the greatest source of danger to a Republic. This led to the question as to whether a large or small republic was the way to prevent faction. Madison noted a benefit of republican government was “to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen, that the public voice, pronounced by the representatives of the people, will be more consonant to the public good, than if pronounced by the people themselves, convened for the purpose.” A large republic with an assembly of broadly selected representatives served not only as a bulwark against a demagogue, but for Madison, further served to take the laws citizens may create recklessly in a more democratic system, and refine them to preserve liberty and reach their intended goal.
The brilliance of design in the Constitution that came out of the 1787 convention was to at once rest on the support of the people, passing the laws necessary for the public good, and conversely, ameliorate the effects of faction (which Madison believed latent in human nature), preventing the rise of laws destructive to liberty and justice. In being the branch closest to the people, Congress also has an obligation to defend the laws of the people and the people themselves from the usurpations of other branches of government.
In 1834, Senate Whigs censured President Jackson. The Whigs desired documents on Jackson’s destruction of the Second Federal Bank, but the Jackson administration refused to comply. Jackson wrote a lengthy and blistering response to the censure, where he accused the Senate of violating not only the separation of powers, but the Constitutional procedure for impeachment.
On May 7, 1834, renowned orator and Whig Senator, Daniel Webster presented not only a tremendous response to Jackson, but made a clear articulation as to why the Congress is the branch of the citizens, “Sir [President Jackson] if the people have a right to discuss the official conduct of the executive so have their representatives. We have been taught to regard a representative of the people as a sentinel on the watch tower of liberty. Is he to be blind though visible danger approaches? Is he to be deaf though sounds of peril fill the air? Is he to be dumb while a thousand duties impel him to raise the cry of alarm? Is he not rather to catch the lowest whisper which breathes intention or purpose of encroachment on the public liberties and to give his voice breath and utterance at the first appearance of danger? Is not his eye to traverse the whole horizon with the keen and eager vision of an unhooded hawk detecting through all disguises every enemy advancing in any form toward the citadel which he guards?” The goal of the legislature is not merely as a body to create positive law, like the congressionally chartered Second Bank of the United States, but to sit as trustees guarding the liberty of the citizens.
Webster continues, “Sir this watchfulness for public liberty, this duty of foreseeing danger and proclaiming it, this promptitude and boldness in resisting attacks on the constitution from any quarter, this defence of established landmarks, this fearless resistance of whatever would transcend or remove them, all belong to the representative character, are interwoven with its very nature and of which it cannot be deprived, without converting an active intelligent faithful agent of the people into an unresisting and passive instrument of power. A representative body which gives up these rights and duties gives itself up. It is a representative body no longer. It has broken the tie between itself and its constituents, and henceforth is fit only to be regarded as an inert, self-sacrificed mass, from which all appropriate principle of vitality has departed forever.” These are not minor implications. Congress has the most direct tie to the fount of power in America, the people. All laws, resolutions, chartered agencies, stem from the desires of the people. When congress fails to take the views into consideration, fails to refine them to compatibility with the constitution, with liberty, and with principles of justice, it has, as Webster notes, ceased to be a representative body.
Often unpopular, dislike for the House and Senate has hit all-time lows. What then, does it mean for Americans today, when public approval of Congress hovers around 20%, when it is meant to be the closest reflection of who they are? What does it say about the character of the citizenry? And perhaps most ominously, will the laws of the nation begin to follow the departed vitality Webster laments above?
James Legee, Visiting Lecturer, Framingham State University Department of Political Science
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Congress has already strayed from the will of the people. Witness Obamacare which was crammed down our throats in a completely partisan way. Who can forget The Speaker of the house famous statement, “We have to pass the bill so you can see what is in.”. If that is not straying, I do not know what is.
Perhaps rather than reading the Constitution on the opening day of Congress, Federalist 10 ought to be read.
The list of grievances penned by John Dickinson approved by the 1st Continental Congress in 1774 toward’s the Kind of Great Britain make glaring comparisons to why people are disaffected today with Congress. Observe:
“A Standing Army has been kept in these Colonies ever since the conclusion of the late war, without the consent of our Assemblies; and this Army, with a considerable Naval armament, has been employed to enforce the collection of Taxes.
The authority of the Commander-in-Chief, and under him of the Brigadiers General has, in time of peace, been rendered supreme in all the Civil Governments in America.
The charges of usual offices have been greatly increased; and new, expensive, and oppressive offices have been multiplied.
The Judges of Admiralty and Vice Admiralty Courts are empowered to receive their salaries and fees from the effects condemned by themselves.
The Officers of the Customs are empowered to break open and enter houses, without the authority of any Civil Magistrate, founded on legal information.
Counsellors, holding their commissions during pleasure, exercise Legislative authority.
Humble and reasonable Petitions from the Representatives of the People, have been fruitless.
Commerce has been burthened with many useless and oppressive restrictions.
By several Acts of Parliament made in the fourth, fifth, sixth, seventh, and eighth years of your Majesty’s Reign, Duties are imposed on us for the purpose of raising a Revenue; and the powers of Admiralty and Vice Admiralty Courts are extended beyond their ancient limits, whereby our property is taken from us without our consent; the trial by jury, in many civil cases, is abolished; enormous forfeitures are incurred for slight offences; vexatious informers are exempted from paying damages, to which they are justly liable, and oppressive security is required from owners before they are allowed to defend their right.
A Statute was passed in the twelfth year of your Majesty’s Reign, directing that persons charged with committing any offence therein described, in any place out of the Realm, may be indicted and tried for the same in any Shire or County within the Realm, whereby the inhabitants of these Colonies may, in sundry cases, by that Statute made capital, be deprived of a trial by their peers of the vicinage.
“‘It is a representative body no longer. It has broken the tie between itself and its constituents, and henceforth is fit only to be regarded as an inert, self-sacrificed mass, from which all appropriate principle of vitality has departed forever.’” The representative body has ceased to be the body the Founders intended and Webster articulated when they handed over their responsibilities to bureaucratic administrative state.
It is far being broad enough to resist demagoguery. A friend of mine seriously considered running for HoR seat. A former Representative told him that one of things he would need to do is deliver a minimum of $100,000 to the whip of his party. If he didn’t he would never serve on a committee. No committee – no influence. And he would be expected to offer his tribute yearly to continue to play.
“There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters”
— Daniel Webster
Dear Father, give us a legislature that means to govern well and remind them to treat us as if they were serving You, giving up the use of threats, because we all have the same Master in heaven, and there is no favoritism with Him.
The Constitution, for all its greatness, actually emasculates the branch of government that, as Jefferson argued, is “closest to the people,” viz., local government, because in a federal system like ours more powers are given to the state than to local governments. And what we see now, in states like Texas where I live, is the state government overlording it over local government and countering ordinances that local governments want to pass and enforce. There is, of course, the reference to “the people” in the Tenth Amendment that, according to our own US Senator Ted Cruz, means that local governments do have rights against the state, but they certainly aren’t putting that reserved power to effect these days.
The remedy in Common Law for a runaway state government is essentially twofold:
1) The power of the sheriff to always be the chief law enforcement officer in the county or shire jurisdiction thereof with the coordinate power to call up a volunteer posse to challenge any threat against the property of the citizens;
2) The mandatory power of a jury of peers (meaning people who are of the vicinage of the accused where a purported crime was committed who are without a conflict of interest, which is contrary someone to contemporary practice of always deferring any jurors who know the accused when the design of the jury is that they are supposed to be comprised of people who more likely know the character of the accused in order to meet out justice.) Jurors have the power of a juris to question law and fact as a grand indictment jury (whose purpose is to be a guard against the government from arbitrarily throwing anybody the government does not approve in jail) and a petite trail jury (whose purpose is to prevent the government from breaking the law or handling the law unjustly.) That jury then has a unique power to acquit, which is recognition that the law has been broken; but denying injury from the law on the accused for reasons that may be anywhere that the jury views that the application of the law was unjust all the way to the law itself is unjust.
The implication of this is that the state cannot overrule the rule of law taking place in a particular county, and if, say, 8 counties in a 20 country state has occurrences of acquittals concerning a particular statue of state law, then it sends a signal to the legislatures that a law on the books is becoming unenforceable and ought to be repealed.
Many states also have “home rule” jurisdictions that provide more civil autonomy on the local level; but home rule is often no applied at the high metropolitan centers because inner city budgets are ever so intertwined with state budgets.