In a republican form of government–one in which representatives of the people make most policy decisions–the legislative branch is the most important.
While the Articles of Confederation had a strong legislative branch, they included minimal or no executive and judicial branches. Trying to create a more energetic government, the Constitutional Convention made Article I, the legislative article, the longest and most detailed, but enhanced the executive power and created a true, but sparsely detailed, judicial branch.
The two overriding concerns of the Constitution’s drafters were to form an effective general government for the United States by amending or replacing the Articles of Confederation, and to protect the liberties of Englishmen that the colonies had seen diminished under their English rulers.
Two features obscure the allocation of power actually made by the Constitution. First, the Constitution contains little organizational emphasis on the powers and limitations of the new general government it established or on its relationship to the existing powers and limitations of the sovereign state governments. Instead, immediately after a preamble, the Constitution launched into a description of the three branches of the general government, scattering its coverage of the powers and limits of both the general and the state governments throughout the first three articles, with some clean-up language in Article IV.
The second obscuring feature is that the original Constitution included no Bill of Rights, an absence solved by the first ten amendments to the Constitution. But, contrary to the recommendation of their author–James Madison–the Bill of Rights also established the practice of not tying the amendatory content to the specific constitutional provisions already in effect. This complicates understanding the Constitution, as mentioned by Madison.
All legislative power of the new general government went to Congress through Article I, Section 1. Within that Article, Section 2 created a House of Representatives with power to impeach, and Section 3 created a Senate with the power to try impeachments and punish offenders. According to Article I, Section 4 (and Amendment XVI), Congress may make or alter regulations regarding elections of Congress members. Section 7 empowers Congress to override a presidential veto of legislation. Power is allocated to Congress in some of the amendments, mostly by empowering Congress to pass legislation implementing the provisions. Congress can remove a disability to hold office through a provision in Amendment XIV.
Article IV, Section 1–the full faith and credit provision–gives Congress the power to make laws prescribing and proving the acts, records, and proceedings of the States. Section 3 of that Article gives Congress the power to admit new states into the Union and to regulate and dispose of the territory and other property of the United States.
But the bulk of the power delegated to Congress is found in Article I, Section 8, which give Congress the power to do the following:
(1) lay and collect taxes, duties, imposts and excises;
(2) lay and collect taxes on incomes [added by Amendment XVI];
(3) pay the debts of the United States;
(4) provide for the common defense of the United States;
(5) provide for the general welfare of the United States;
(6) borrow money on the credit of the United States;
(7) regulate commerce with foreign nations, and among the several states, and with the indian tribes;
(8) establish a uniform rule of naturalization;
(9) establish uniform laws on the subject of bankruptcies;
(10) coin money, regulate the value thereof, and of foreign coin;
(11) fix the standard of weights and measurements;
(12) provide for the punishment of counterfeiting the securities and current coin of the United States;
(13) establish post offices and post roads;
(14) promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
(15) constitute tribunals inferior to the Supreme Court;
(16) define and punish piracies and felonies committed on the high seas;
(17) define and punish offenses against the law of nations;
(18) declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
(19) raise and support armies;
(20) provide and maintain a navy;
(21) make rules for the government and regulation of the land and naval forces;
(22) provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;
(23) provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;
(24) exercise exclusive legislation in all cases whatsoever, over such district as may, by cessation of particular states, and the acceptance of Congress, become the seat of the government of the United States;
(25) exercise like authority over all places purchased by the consent of the Legislature of the State of which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and
(26) make all laws which shall be necessary and proper for carrying into execution the foregoing powers (items 1-25), and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
Article 1, Section 9, contains limitations, some on Congress and others more general:
(1) prohibiting Congress from prohibiting the migration or importation of such persons as any of the States [then] existing shall think proper to admit, prior to the year 1808, but allowing a limited tax or duty to be imposed on such Importation;
(2) not suspending the privilege of the writ of habeas corpus except in cases of rebellion or invasion when the public safety may require it;
(3) not passing bills of attainder or ex post facto laws;
(4) not laying a direct tax except in proportion to the census or enumeration taken [but see Amendment XVI re income taxes];
(5) not laying a tax or duty on articles exported from any State;
(6) Not giving a preference by any regulation of commerce or revenue to the ports of one State over those of another, and not requiring vessels bound to, or from, one State, to enter, clear, or pay duties to another;
(7) not drawing money from the treasury, but in consequence of appropriations made by law; (8) requiring that a regular statement of account of receipts and expenditures of all public monies be made from time to time;
(9) not granting titles of nobility by the United States; and
(10) not permitting a person holding any office of profit or trust under the United States to accept any present, emolument, office, or title, of any kind from any king, prince, or foreign State without the consent of Congress.
Article I, Section 10, empowers Congress to consent to otherwise prohibited actions by the states through the following provisions:
(1) “[n]o State shall, without the consent of Congress, lay any Imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws: and the net produce of all duties and imposts, laid by any State on imports and exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.” [Clause 2]
(2) “[n]o State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.” [Clause 3]
The First Amendment explicitly limits the powers of Congress: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Although the list of the foregoing powers is extensive, it is finite and explicit. Reinforcing that circumstance, and perhaps most importantly, Congress is governed by the Ninth Amendment, which provides that “[t]he enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” Congress is also governed by the Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States, respectively, or to the people.” Both these amendments govern Congress, as well as the government of the United States.[1]
Written by Don LeDuc
[1] My sources for this piece are The Federalist, The Founders’ Constitution, Debate on the Constitution, and the National Archives.