Academic journal article Harvard Journal of Law & Public Policy

The Place of Congress in the Constitutional Order

Academic journal article Harvard Journal of Law & Public Policy

The Place of Congress in the Constitutional Order

Article excerpt

It is no accident that the Constitution begins with Congress. The Founders understood that the legislature would be central to the new constitutional project. Congress would be the foundation stone upon which the rest of the governmental edifice would be constructed, and so it necessarily came first in the constitutional document and absorbed the bulk of the delegates' attention at the Philadelphia Convention in the summer of 1787. Getting the national legislature right, they believed, was their most important task if the government they were constructing was to be successful.

Beginning with Congress was the natural choice for those designing a new government for the American republic. The first American constitution, the Fundamental Orders of the Connecticut colony, began by establishing two general assemblies. (1) Even the royal charters granted to the colonists settling the North American wilderness tended to begin by setting out a council for the "ruling, ordering, and governing" of the inhabitants, as the Charter of Massachusetts Bay put it. (2) When the revolutionaries announced, as in Virginia, that "the government of the country, as formerly exercised under the crown of Great Britain, is TOTALLY DISSOLVED," their plans for new state governments began with the legislative branch. (3) The Articles of Confederation government consisted of nothing but a legislature. (4)

In Britain, the power of Parliament had to be wrested from the king. The growth of parliamentary authority gradually transformed the British kingdom and secured new liberties for Englishmen. Britain was not a republic, but the English colonists who crossed the Atlantic Ocean were nurtured on republican ideas. And at the heart of any republic would be an assembly of the people. It was that body that made it the people's government. (5)

There was little question that when the Federalists gathered in Philadelphia to reconstitute the federal government and put it on stronger footing, the design of Congress would be the first priority. They knew that Congress could not be the whole of the government, but they expected Congress to be the driving force of any government they created, with all the promise and danger that that entailed. It would be the repository of national powers, and the channel of popular energy. (6)

The Founders were clear-eyed about the national legislature. They recognized both its potential virtues and its potential vices. Finding a place for Congress within the constitutional order meant appreciating both those virtues and those vices, and finding ways to help realize and take advantage of the benefits that a legislature can bring and of finding ways to curtail the damage that it might do.

I. CONGRESSIONAL VIRTUES

Congress serves a particular role within the constitutional system. That role exploits the particular virtues of a representative assembly. Congress is constituted so as try to build up those virtues, and it is empowered to perform duties that exploit those advantages.

There are four interrelated political virtues associated with Congress. Congress is the primary vehicle by which the citizenry is represented in government. Congress is the government institution most directly accountable to the people. Congress embodies deliberation in the making of government policy. The work of Congress is relatively transparent to the public. This is not to say that the other branches of the federal government are completely lacking in these virtues, but simply that Congress has a comparative advantage when it comes to these features of the political system. The design of Congress is meant to bring these virtues to the fore, and the powers and responsibilities assigned to Congress attempt to take advantage of them.

A. Congressional Representation

Congress is entrusted with the legislative power because it is a representative assembly. Popular representation and policymaking power were understood by the Framers to go together (7) and as a consequence the delegates at the Philadelphia Convention spent most of the summer wrestling with the twin problems of what powers were to be entrusted to the national government and who would control those powers. …

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