Why Did the Founders Create a Divided Congress?

The liberty principle for this Freedom Friday concerns the need to adhere to constitutional principles. The further America moves away from the U.S. Constitution, the more freedom is lost. In an interview with Virginia Allen of The Heritage Foundation, Joseph Postell, an associate professor of politics at Hillsdale College, discussed Congress and its history. 

Allen asked a question about the design for government created by the Founders of America. The question is, “Now, when the Founders were crafting Congress, why did they see a need for two separate entities, to have a House and a Senate?” Postell gave the following as a short answer: “But I think the question you’re asking really gets at the most significant thing about Congress…. So they actually deliberately made Congress weak by dividing it up into these two bodies.” The professor continued with his explanation, which Allen said, “invites a very different answer.” Then she explained her opinion as follows.

First, there is the significance of the word “Congress.” Here is the first definition of that word in my dictionary: “A formal assembly of representatives, as of various nations, to discuss problems.” The Congress of Vienna is a famous example. It was a series of meetings between representatives of the nations of Europe to try to work out a new European political order after the defeat of Napoleon. It was not called the Parliament of Vienna because it was not a legislative body but an assembly of representatives.

And neither was America’s Continental Congress. As Postell notes, the Continental Congress predated the Constitution. Representatives of the 13 former colonies met to work out how they could win their independence from the British Empire. It is often said that the Continental Congress was politically weak. All that really means is that it was not a legislative body. The states retained their sovereignty, and the representatives of the states met together to discuss the challenges the states needed to face together.

Why, then, did the Founders keep that name for the American legislature created by the Constitution? After all, it was no longer a formal assembly of representatives of the various states to discuss the problems they had in common.

Keeping the name made sense because the first Congress under the Constitution was in many ways more like the Continental Congress than the Congress of the bloated post-constitutional central government we have in Washington, D.C., today….

So, why did the Founders use the word Congress rather than Parliament? Because they delegated few and defined powers to the federal government and left all other powers to the States. The powers delegated to the federal government are “exercised principally on external objects, as war, peace, negotiation, and foreign commerce.” The Founders reserved all other powers to the States. This is the principle upon which the current Supreme Court sent the matter of abortion back to the States.

Allen quoted Postell as giving a “very astute discussion of why the Founders kept the name is right on target.”

So unlike, say, Parliament, which was the ide of a legislative body with which the Framers were familiar, Congress implies something more like a bunch of different countries or different groups of people coming together to hash out their differences…

They use this word Congress because they really believed in a federal system. They really believed that they were states that were united for limited purposes, but a lot of the power and the sovereignty was going to lie back with the states.

So under this conception, really, it’s not an entirely national system. It’s actually a federal system in which the Congress is almost like diplomatic representatives from different countries coming together to kind of deal with issues like trade and military defense and things like that.

Under the U.S. Constitution, States send people to Congress to represent the interest of those States and their residents. The States gave up power to wage war or to negotiate with foreign nations. However, they also kept control of those powers through the representatives that they sent to Congress. Allen explained the situation as follows:

Besides, the state governments would not be giving up control of those powers. They would retain control of them by means of the Senate. According to the founding bargain, senators would be chosen by the state legislatures, and the Senate would control those powers delegated to the federal government. That’s why the Constitution gives the Senate power over treaties, over the declaration of war, even over the people the president selects for his Cabinet. By giving the state governments control of the Senate, the Constitution gave them enormous power within the federal government.

Consequently, Congress needed two houses, not to make it weaker, but for the simplest of reasons: the Founders’ astonishing innovation required it.

The American state governments were to be represented in the Senate – the federal legislative house of the state governments – and you and the people in your locality were to be represented in the House of Representatives – the federal legislative house of the people. The states and the people would each have a representative body in the federal legislature.

But in 1913, the American people broke the founding bargain, setting in motion the ongoing process of progressively overthrowing the Constitution, which is the source of the mess we find ourselves in today.

The 17^th Amendment was the single change that did the most to undo what the Founders had accomplished by means of the Constitution. It provided for the direct election of senators, the system we have now. The state governments would no longer control the Senate through the representatives they chose. The state governments’ base of political power within the federal government was taken from them, putting an end to the federal system of the Founders.

Allen continued by explaining that Progressives “tricked” the American people into believing that the Constitution needed to be reformed. “The ‘reform’ in effect repealed the 10^th Amendment: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’”

If the American voters had understood that the “reform” acted to repeal the 10^th Amendment, they most likely would not have voted for the change. “But by means of the 17^th Amendment, the Progressives accomplished something even more far-reaching: They removed the central pillar of the Founders’ brilliantly designed federal system.” With the 17^th Amendment, Americans lost freedoms. The loss of those freedoms brought us to the situation in which we live today. Progressives continue to work to change the Constitution.

Today, the U.S. Constitution “hangs by a thread” as prophesied by the Prophet Joseph Smith. The 2024 presidential election is our last chance to save the Constitution. If Biden is re-elected – or another Democrat is elected, we will lose our nation as we know it. Anyone and everyone who is interested in saving America and the U.S. Constitution should vote for Donald Trump!

Who Should Be Counted in the Census?

             The topic of discussion for this Constitution Monday is the U.S. Census. Article I, Section 2 of the U.S. Constitution mandates that the population of the United States be counted every ten years. However, a recent report by the Census Bureau showed that the bureau made some serious errors in the census count taken in 2020.

            The population of eight states was overcounted, while the population of six states was undercounted. The states, like Florida, which were undercounted did not receive all the representatives to which they are entitled. At the same time, states, like Minnesota and Rhode Island, have too many representatives in Congress.

            In addition to under-representation and over-representation in Congress, the Electoral College votes for those same states will be wrong. Article II, Section 1 of the Constitution sets the number of electors for each state to be the same as its representatives in Congress – two U.S. Senators plus the number of its representatives.

            There are 435 members in the U.S. House of Representatives. Article I, Section 2 states that “each state shall have at least one representative.” That means that 50 members represent the 50 states, and the other 385 members are divided among the states according to their population. Hans von Spakovsky wrote the following about the effects of the 2020 Census. 

 As our nation has grown and added more states to the Union, the House has added more members. In 1929, however, Congress passed the Permanent Apportionment Act, which limits the size of the House to 435 members. After the 2020 census numbers were determined, those 435 members were divided among the states based on the total population of the country (a bit more than 331 million people).

That reapportionment gave six states additional seats and reduced the number of seats held by seven states. Texas gained two representatives, while California and New York each lost a congressional seat. As noted earlier, however, the Census Bureau made significant mistakes and deprived citizens in eight states of appropriate representation in Congress.

Another pathology associated with apportionment is that it is based on population totals that include noncitizens, including illegal aliens. In a nation where the population of both legal and illegal aliens now numbers in the millions, the sheer volume distorts congressional representation.

How bad is this distortion? In 2015, the Congressional Research Service issued a report on how apportionment would have changed after the 2010 census if the 2013 estimated citizen population had been used, excluding aliens here both legally and illegally.

According to the report, using citizen population only would have shifted seven congressional seats among 11 states. California, for example, would have lost four seats, while states such as Louisiana and Missouri would have each picked up a new seat.

Including the alien population in apportionment unfairly and unjustly alters political representation in the House and devalues the votes of citizens.

Some argue that the language in Section 2 that apportionment is based on the “number of persons in each state” means that aliens must be included in the apportionment calculation. However, the term “person” has historically been interpreted in this context to mean an individual who not only has a physical presence, but also some element of allegiance to a particular place.

That is why the Census Bureau, for example, does not include noncitizens who visit the U.S. for a vacation or a business trip in the population count, since they have no political or legal allegiance to any state or the federal government.          

            Since the Supreme Court has never ruled on the constitutionality of a case about apportionment including aliens. Maybe Florida or another – or maybe all – of the states missing representation will take the matter to court. The Supreme Court should weigh in on the question about whether illegal aliens/undocumented immigrants will affect the apportionment of representation in our nation.

Wise Men

                    Where are the wise men of our day?  I recently read the following comment and consider it to be a correct description of our leaders in Washington, D.C.  "I heard that the Supreme Court has ruled that Washington, D.C., cannot have any nativity scenes this year.  It is not a religious ruling.  They cannot find three wise men in Washington."  This joke would be funny if it were not true! 

                    We know the story of the wise men found in Matthew 2:  "Now when Jesus was born in Bethlehem of Judea in the days of Herod the king, behold, there came wise men from the east to Jerusalem.

                    "Saying, Where is he that is born King of the Jews?  For we have seen his star in the east, and are come to worship him."  Herod did not know where the Christ Child was so the wise men continued to follow the star.

Our Founders were wise men.  They founded our nation and wrote our Constitution.  They didn't know everything that would happen in the future, but they did know history and did not want it to repeat in their new nation.  They wrote the Constitution in such a way that it would apply in every age - as long as Americans remained moral and religious people.  Our Constitution has lasted for more than 235 years, and it would continue to be the supreme law of our land to the end of time if it were followed.  The problem is that we now have leaders who want to "fundamentally transform" our nation and have made many end runs around our Constitution.  The Founders must be scratching their heads and wondering what happened!

                    Like many other people, I am stunned by the words and behaviors coming out of Washington.  Our elected leaders do not appear to want to do what we elected them to do.  Congress has not been able to pass a budget in three years!  We are all aware of the fraud and corruption that is rampant in our highest offices.  We know that our leaders are lying to us and acting as though we are fools.  Washington has become a three-ring circus complete with clowns!  Very few of our representatives are acting like responsible adults - let alone like they love our nation. 

 

                    The following words attributed to Mark Twain have never been truer:  "It could probably be shown by facts and figures that there is no distinctly native American criminal class except Congress."  This statement proves that contempt for Congress is not a new phenomenon.

                    It is our own fault that we have clowns running our nation.  We voted them into office!  Have we learned anything at all?  Will we elect better leaders in 2012?  Before we can elect better leaders, we must become better people.  Our Constitution was written for moral and religious people.  It will not last if we are not moral and religious.   We must change ourselves before we will elect better leaders. 

                    We must become like the wise men of old.  They studied and watched carefully for the star proclaiming the birth of the Savior.  When they saw the new star in the sky, they recognized it and followed it.  We must find some wise men and women and follow them!

Meeting Place

The topic of discussion for this Constitution Monday comes from Article I.5.4: “Neither house shall, without the consent of the other, vote to meet at a different place.” Each house in Congress has the right to have the other house available at an agreed upon meeting place in order that the necessary business can be performed. This provision was included to prevent our Congress from following the bad example of the English parliament.

Annual Sessions

The principle for this Constitution Monday comes from Article I.4.2, "The Congress, consisting of both the House and the Senate, shall meet automatically once every year, on the first Monday in December unless they shall by law appoint a different day." This principle gives the people the Right to expect their representatives in Congress to automatically meet each year on a specific date. (Section 2 of the Twentieth Amendment, passed in 1933, changed the date to January 3.)

The writers of the U.S. Constitution were well aware that the king in England convened and dissolved Parliament whenever he chose to do so, and they wanted to avoid the conflicts caused by such behavior. The Founders wanted the annual sessions of Congress to occur automatically each year, and they wrote specific instructions to do so.

An interesting side note: At the time George Washington became President of the United States, the States General of France had not been called together by the king for 175 years. King Louis convened the French States General one month after Washington was inaugurated - and the French Revolution was the result of their meeting.

Temporary Representatives

The writers of the United States Constitution provided in Article I.2.3, "As a temporary expedient until the first census is taken, each state is entitled to a specified number of Representatives." This provision was merely a temporary procedure to insure that each state had at least one Representative in Congress. The Founders took a calculated guess as to what the population was in each state and assigned a certain number of Representatives. Virginia (10), Massachusetts (8), and Pennsylvania (8) had the most Representatives while Rhode Island (1), Delaware (1), New Hampshire (3), and Georgia (3) had the least.

Lawmaking Powers

The eighth principle of the United States Constitution is found in Article I.1.1 (Article I, section 1, paragraph 1). This principle is: All legislative or lawmaking powers granted by this Constitution shall be vested exclusively in the Congress of the United States. This principle means that we as the people of the United States have the Right to expect the majority of our representatives to review and approve every proposal before it becomes a federal law. Our Founding Fathers made the law-making procedure as safe and secure as they could possibly make it. "Their legacy to future generations included a series of highly significant guidelines for Congress" (W. Cleon Skousen in The Making of America - The Substance and Meaning of the Constitution, p 250). Skousen included a list of the safeguards desired by the Founders: 1) "Federal laws should be few in number," 2) "Each law should be written in simple, non-technical language," 3) The House had the responsibility to "scrutinize proposed laws as the representatives of the people," 4) The Senate had the responsibility to "scrutinize new laws as the representatives of the states, 5) The President had the responsibility to scrutinize "new laws from a national viewpoint, 6) "The Courts must scrutinize new laws in terms of the Constitution." Skousen continued, "With so much good advice concerning the lawmaking process, it was no doubt expected that the proper procedure would remain strictly within its prescribed limits, particularly in view of the statement in Article I, section 1, that ALL lawmaking authority would be vested exclusively in the Congress. However, that is not what happened" (The Making of America, p 251). The Founders intended that each state would remain sovereign in its responsibilities and that the Federal government would stick to its own responsibilities. Congress gradually passed laws that encroached on the rights of the states, and both the Executive Branch and the Judicial Branch began "writing laws" in their own unique ways. Since 1887, requirements known as "administrative law" has been issued by various governmental agencies. These "administrative laws" are enforceable in the courts just like laws made by Congress. In addition, Presidents have taken to writing executive orders, which are also enforceable in the courts. Executive orders started as administrative orders to the government agencies but did not affect the public. These executive orders gradually increased in number and influence. An example of how gradual they grew is a comparison between the 71 executive orders written by President Grover Cleveland and the 51 issued by President William McKinley with the 1,006 issued by President Theodore Roosevelt. By January 1985, the official count of executive orders numbered 12,498, and there have been many written since that time. The Founders required that all treaties with foreign governments be approved by the Senate, but Presidents began making secret executive agreements with foreign nations. The Yalta Agreement in 1945 between President Franklin D. Roosevelt, Winston Churchill, and Joseph Stalin is an example of the agreements made. Neither the Senate nor the American people know today all the commitments made by Roosevelt at Yalta. The Judicial Branch also got into the act of "writing laws." The courts would take authority from Congress to do "judicial legislation" or authority from the Executive Branch to do "judicial administration." It is obvious that all three branches of the Federal Government have a difficult time sticking to the Constitution! The Founders provided two means of safety for the lawmaking process, whether the laws are made by Congress or the courts. The first way gave the state legislatures power to reverse decisions made by Congress or courts by calling for a convention to amend the Constitution. This regulation was written in such a way that neither Congress nor the courts could prevent it. Alexander Hamilton said, "In the fifth article of the plan [as provided in the Constitution], the Congress will be obliged on the application of the legislatures of two-thirds of the states to call a convention for proposing amendments which shall be valid, to all intents and purposes, as part of the constitution, when ratified by the legislatures of three-fourths of the states, or by conventions in three-fourths thereof." Hamilton continued, "The Words of this article are peremptory [mandatory]. The Congress `shall call a convention.' Nothing in this particular [provision] is left to the discretion of that body…. We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority" (as quoted in The Making of America, p 256). The second means of safety for the people was the common jury. This was thought by the Founders to be the most powerful weapon of defense against abusive government - but the Supreme Court took away half of its power in 1895. Since that time the people do not have the right to judge the law. If the people of the United States are to regain control of the Federal government, the "first safety net - the power of the state legislatures to call a convention and reverse the Congress and the courts - must become operational. As of 1985 it has never been used. This device could then be employed to restore the powers of the common-law jury. After that a carefully structured "New Bill of Rights" could be submitted to a constitutional convention, which would restore the original genius of a divided, balanced, and limited government as envisioned by the Founders…. We must have a generation of Americans who believe in the Founders' original success formula and who have the ingenuity and grit to restore it as the Founders initially planned it" (The Making of America, p 257). I have not found any indication that a constitutional convention has ever been held, but I did read somewhere that one was threatened until Congress approved one of the Amendments that we now have. This health care bill that is currently working its way through Congress may just be the one that forces a constitutional convention. I do not know of a simple way to teach this principle to children because I am having a difficult time getting my own brain around this concept - or at least why we are having problems with it today. I believe that we can put the blame for this problem on the progressive movement also since the bigger problems have come about in the past hundred years since the progressive movement began.