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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.
- The Congress under the Articles of Confederation sanctioned the Federal Convention.
- The Federal Convention needed Congress to forward the Constitution on to the state ratification conventions.
- People would be more comfortable with a strong executive after they saw legislative checks on executive powers.
- 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.
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