Historic Roots of the Legislative Branch

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Historic Roots of the Legislative Branch

The legislature is the branch in government that makes the laws. The legislature for the United States of America is called Congress. The U.S. Constitution, the blueprint for American government, divides Congress into two chambers: the Senate and the House of Representatives.

Dividing the legislature into two chambers is what political scientists call bicameralism. The word bicameralism comes from Latin words that mean "two chambers." A legislature with only one chamber is called unicameral. An example of unicameralism can be found in Nebraska, where, as of 2005, the legislature makes up the entire legislative branch of the state government.

Congress in the Constitutional Convention

In late spring and summer 1787, delegates from twelve of the thirteen American states met in Philadelphia, Pennsylvania, for a Constitutional Convention. The delegates, fifty-five white men, included Americans such as Benjamin Franklin (1706–1790), George Washington (1732–1799), James Madison (1751–1836), and Alexander Hamilton (1757–1804). At the time, America was governed under the Articles of Confederation by a unicameral Congress with no president and no judiciary, or federal court system.

The delegates to the Constitutional Convention were there to discuss how to revise America's government under the Articles of Confederation to make the government stronger. Rhode Island was the only state that refused to send delegates to the convention. The men in control of Rhode Island wanted strong state governments, not a powerful national government.

Although they were only supposed to recommend changes to the Articles of Confederation, the delegates soon voted to recommend replacement of the Articles with a wholly new blueprint for American government. This document they would call the Constitution of the United States of America.

One of the questions the delegates faced when writing the Constitution was what kind of legislature to propose for America. History provided many examples of legislatures with more than one chamber, from the ancient Roman Republic to the British Parliament to most of the legislatures in America's first thirteen states. Political philosophers who influenced the delegates in Philadelphia had written that bicameralism was the best way to give representation in government to both the wealthy class of society and to the class of free men who did not have considerable wealth. These factors (plus the struggle between large and small states) led the delegates to recommend a bicameral legislature in the Constitution.

The Roman Republic

The Roman Republic, centered around the city of Rome (in present-day Italy), lasted from around 509 bce to 27 bce. The governments that ruled during this period were republican to some extent. A republican government is one in which power rests with the people, who exercise that power through elected representatives. During the Roman Republic, all free adult men were generally allowed to vote. Women and slaves could not vote, so it was not a true republic.

The Roman Republic that operated during the early part of this era is the one that most influenced the men who wrote the U.S. Constitution. Its government contained two consuls, a Senate, and two assemblies. The consuls were military generals who served as the executive heads of the Republic, much like the president of the United States. The consuls were elected by the men who served in the centuriate assembly, a body of men elected by the free adult men of the Republic. It dealt mainly with issues of war and peace.

Roman Senate

The Roman Senate and the second assembly, called the tribal assembly, were the legislative bodies in the Roman Republic. The Senate was left over from the period 753 bce to 509 bce, when Rome was governed by a succession of seven kings. The Senate during this period acted as an advisor to the kings, who appointed the members of the Senate, mostly from the wealthy class of society. Although it was just an advisory body, the Senate, according to Marchamont Nedham in The Excellencie of a Free-State, insisted on having a voice in legislation:

In old Rome, we find Romulus their first king cut into pieces by the Senate, for taking upon him to make and execute Laws at his own pleasure. And Livy tells us, that the reason why they expel'd Tarquin their last King, was, because he took the Executive and Legislative Powers both into his own hands, making himself both Legislator, and Officer, inconsulto Senatus without advice, and in defiance of the Senate.

When Rome became a republic around 509 bce, the Senate remained part of its government. Just as Roman kings had appointed men to the Senate, the consuls of the republic had this power, too, so the men of the Senate continued to be drawn from the wealthy class. Although the Senate was supposed to be an advisory body without lawmaking authority, it was so powerful that its recommendations to the consuls and to the tribal assembly usually became law.

Tribal assembly

The tribal assembly was the official lawmaking authority in the Republic. It was divided into geographical regions, or tribunes, where the free adult men elected their representatives to the assembly. In theory, the tribal assembly could enact laws that the people wanted without approval by the Senate. The Senate's status and power, however, effectively limited the tribal assembly's lawmaking authority to what the Senate would approve.

In the sixteenth century, a political philosopher named Niccolò Machiavelli (1469–1527; pronounced MOK-ya-VEL-lee) wrote a series of books called Discourses on the First Ten Books of Titus Livius. Machiavelli, whose philosophy would influence the convention delegates in Philadelphia in 1787, championed the system set up by the Roman Republic. Machiavelli said that governments have cycles that begin with monarchy (rule by one), change into aristocracy (rule by the wealthy), and change again into democracy (rule by the people). The problem with all three forms of government, he said, is that they all lead to corruption.

The Roman Republic, in Machiavelli's opinion, had solved this problem by combining in one government monarchy (the consuls), aristocracy (the Senate), and democracy (the popular assemblies):

Fortune favored her [the Roman Republic], so that, although the authority passed successively from the kings to the nobles to the people, . . . yet the royal authority was never entirely abolished to bestow it upon the nobles; and these were never entirely deprived of their authority to give it to the people; but a combination was formed of the three powers, which rendered the constitution perfect, and this perfection was attained by the disunion [separation] of the Senate and the people.

The political philosophers

Unlike most Americans at the time, the delegates at the Constitutional Convention had the privilege of enjoying years of schooling and education. Classic education then involved reading the works of philosophers from western European history. These included the writings of Greek philosopher Aristotle (384 bce–322 bce), English philosopher John Locke (1632–1704), French philosopher Charles Montesquieu (1689–1755), and Scottish philosopher David Hume (1711–1776).

Aristotle on men of property

Aristotle was a Greek scientist and philosopher whose writings defined those fields of study for western Europe. According to Mark Roelofs in The Poverty of American Politics, Aristotle saw society as a collection of groups with competing interests. Those groups included extremely wealthy men, moderately wealthy men, and free men without considerable wealth. (Aristotle, like most well-known philosophers prior to the nineteenth and twentieth centuries, did not think women, children, or slaves had societal interests worthy of consideration in theories of government.)

Aristotle, says Roelofs, felt that the best way for the groups to protect their interests was for each group to have representation in government. Hence, Aristotle recommended that government have a monarch for representing the extremely wealthy, a council for representing the moderately wealthy, and an assembly for representing free men without considerable wealth. Government should not be able to pass a law or take other action, according to Aristotle, without approval by all three bodies.

The legislature proposed by the Constitutional Convention resembled Aristotle's vision in a number of respects. The House of Representatives was to be elected by people in the states who, under state law, had the right to elect representatives to their state legislatures. This generally meant free adult men who owned at least a moderate amount of property.

In contrast, the Constitution originally provided for the Senate to be selected by the legislatures of the states, not by the people. State laws usually required that the men elected to the state legislatures own a considerable amount of property. Hence, the people who would choose the senators of the United States would be men of wealth.

Finally, the U.S. Constitution generally requires that both Congress and the president approve bills for them to become law. This mirrored Aristotle's suggestion that each body of government approve governmental action in order to protect the interests of all those represented.

John Locke and the separation of powers

John Locke was an English scientist and philosopher who helped launch the Age of Enlightenment. The Age of Enlightenment was a period in the seventeenth and eighteenth centuries during which men used reason to change the study of philosophy and politics. Locke's father was a country attorney, which allowed Locke to afford schooling at Christ Church college in Oxford, England.

Locke's most famous political work is called Two Treatises of Government. The second treatise, or essay, published in 1689, contains his theory of how government should be organized. Locke argued that the lawmaking branch of government must be separate from the executive branch, the one that executes the laws:

The Legislative Power is that which has a right to direct how the Force of the Commonwealth shall be imploy'd for preserving the Community and the Members of it. But because those Laws which are constantly to be Executed, and whose force is to continue, may be made in a little time; therefore there is no need, that the Legislative should be always in being, not having always business to do. And because it may be too great a temptation to human frailty apt to grasp at Power, for the same Persons who have the Power of making Laws, to have also in their hands the power to execute them, whereby they may exempt themselves from Obedience to the Laws they make, and suit the Law, both in its making and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the Community, contrary to the end of Society and Government: Therefore in well order'd Commonwealths, where the good of the whole is so considered, as it ought, the Legislative Power is put into the hands of divers [diverse] Persons who duly Assembled, have by themselves, or jointly with others, a Power to make Laws, which when they have done, being separated again, they are themselves subject to the Laws, they have made; which is a new and near tie upon them, to take care, that they make them for the publick good.

The U.S. Constitution follows this advice by making the president separate from Congress. Congress, however, would grow to be in session almost year-round, contrary to Locke's opinion that legislatures need not be.

Charles Montesquieu on legislation

Charles Montesquieu was a French philosopher whose The Spirit of Laws, published in 1748, greatly influenced the men who wrote the U.S. Constitution just four decades later. In it, Montesquieu said, "The great end of mens [sic] entering into Society, being the enjoyment of their Properties in Peace and Safety, and the great instrument and means of that being the Laws establish'd in that Society; the first and fundamental positive law of all commonwealths, is the establishing of the Legislative Power."

Locke said much the same thing before Montesquieu. Writing in Two Treatises of Government, Locke said, "The great and chief end therefore, of Men's uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property."

When they used the word "Property," Montesquieu and Locke were referring not only to material wealth, but also to life and liberty, or freedom. The men who wrote the U.S. Constitution in 1787 paid particular attention to the wealth aspect of "Property" by promoting commerce, or business, through the legislative branch. The powers of Congress contained in Article I, Section 8, of the Constitution include the power to tax imports, regulate commerce and bankruptcy, coin and regulate money, punish counterfeiting (the making of fake money), and patent (protect) scientific inventions.

As for life, the Constitution of 1787 allows Congress to create an army and navy to be run by the executive branch of government for national defense.

On the subject of liberty, the Constitution prevents Congress from enacting bills of attainder or ex post facto laws. A bill of attainder is a law that convicts a person of treason or other serious crime without a trial. The Constitution defines treason as levying war against the United States or giving aid and comfort to its enemies. An ex post facto law is one that punishes a person for doing something that was not illegal when done. The Constitution also prevents Congress from eliminating the writ of habeas corpus, which is a procedure a prisoner can use to get out of jail when being held illegally. Finally, the Constitution guarantees citizens a trial by jury when accused of federal crimes, a right Great Britain sometimes denied the colonists before 1776, when America declared independence.

The Constitution of 1787 fell short of protecting liberty in one serious fashion: it protected slavery with three separate provisions. First, in calculating a state's population for determining the number of representatives the state would have in the House of Representatives, the Constitution said each slave would count as only three-fifths of a person. Second, the Constitution prevented Congress from outlawing the importation of slaves before 1808. Third, the Constitution said that if a slave escaped to a free state, that state would have to return the slave to captivity.

David Hume on democracy

David Hume was an eighteenth-century Scottish philosopher who wrote occasionally on politics. One topic that he covered was the issue of democracy. A pure democracy is a form of government in which the people themselves exercise the powers of government. Because they require the active participation of every citizen, pure democracies are impractical in large states or nations (although the Internet could conceivably change that one day).

Practicality aside, many of the Founding Fathers, the men who shaped early America, were actually hostile to the notion of democracy. John Adams (1735–1826), the country's second president, wrote in a letter to Revolutionary War leader Samuel Adams (1722–1803), "When the people, who have no property, feel the power in their own hands to determine all questions by a majority, they ever attack those who have property. . . ."

David Hume also considered democracy dangerous. Writing in 1742 in That Politics May Be Reduced to a Science, Hume expressed his opinion that democracy in the Roman Republic eventually led to anarchy, the absence of law and order. Much like Aristotle, then, Hume recommended a bicameral legislature. One body, he said, should represent the nobility (men of wealth), and the other should contain representatives elected by the free men.

Charles Montesquieu on representation

The Constitution established government by representation in the House of Representatives. Representation is when politicians are elected to represent the interests of citizens from a certain area. Montesquieu wrote of representation in his Spirit of Laws:

As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole body of the people. But since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact by themselves.
The inhabitants of a particular town are much better acquainted with its wants and interests than with those of other places; and are better judges of the capacity of their neighbors than of that of the rest of their countrymen. The members, therefore, of the legislature should not be chosen from the general body of the nation; but it is proper that in every considerable place a representative should be elected by the inhabitants.
The great advantage of representatives is, their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy.

Consistent with this philosophy, the Constitution provides that members are elected to the House not from the population of America generally, but "by the people of the several states." It further defines which of those "people" get to cast such a vote: "electors in each state shall have the qualifications requisite [required] for the electors of the most numerous branch of the state legislature." In other words, the right to elect representatives is governed by state law. Just as Montesquieu said only "free agents" should elect representatives, generally in 1787, only white adult men with property had the right to elect representatives under state laws and, hence, the right to elect representatives to the House.

British Parliament

The thirteen American colonies separated from Great Britain in 1776 partly because the government of Great Britain was treating them unfairly. The American Declaration of Independence from that year lists many of the colonists' complaints, primarily blaming King George III (1738–1820; reigned 1760–1820), Great Britain's monarch at the time. The king, however, was only a portion of the colonists' troubles.

The eighteenth-century legislature of Great Britain had three branches. The king and his advisory council made up one branch. The other two were the House of Lords and the House of Commons. Legislation had to be approved by all three branches to become law.

The House of Lords was often called the upper chamber of Parliament (the name for the British legislature). Its members were religious leaders, such as bishops and archbishops, and others from the noble class of English society. Instead of being elected to office, members of the House of Lords inherited their seats. This meant that the House of Lords represented the wealthiest class of English society, not the general population.

The House of Commons, also called the lower chamber, was the elective branch of Parliament. To vote in elections, though, one had to be a man who owned a certain amount of property. This meant that the House of Commons tended to represent the wealthy merchants of Great Britain.

Congress, as constructed by the Constitutional Convention of 1787, resembled Parliament in its separation of powers, its checks and balances, and its capacity to represent the wealthier members of society. It differed primarily by making office in the upper chamber (the Senate) elective rather than hereditary (passed on from one generation to the next).

Parliament and the separation of powers

When Locke wrote of the separation of powers in 1689, that principle was already a celebrated feature of British government. Clement Walker, a member of Parliament in 1648, wrote that year of the way British government divided power into three branches:

The King is the only supreme Governour of this Realme of England, to regulate and protect the people by commanding Laws to be observed and executed; and to this end He (and He alone) beareth not the Sword in vaine; yet the King by himselfe can neither make, repeal, or alter any one law, without the concurrence of both Houses of Parliament, the Legislative power residing in all three, and not in any one.

The Constitution of 1787 adopted much of this by requiring both chambers of Congress and the president of the United States to approve a bill for it to become law. An important difference, however, is that if the president rejects a bill by vetoing it, Congress can override the veto by a two-thirds vote in both chambers. In this way, the Constitution gave more lawmaking power to Congress than to the president, while in England, the power between Parliament and the monarch was equal.

Parliament and checks and balances

Checks and balances refers to the ability of one branch of government, such as the legislature, to limit the power of another branch, such as the executive. In a bicameral legislature, however, it also refers to the ability of one chamber to limit the power of the other. Writing in 1765 in Commentaries on the Laws of England, legal scholar William Blackstone celebrated the checks and balances of the British system:

And herein indeed consists the true excellence of the English government, that all the parts of it form a mutual check upon each other. In the legislature, the people [House of Commons] are a check upon the nobility [House of Lords], and the nobility a check upon the people; by the mutual privilege of rejecting what the other has resolved. . . . Thus every branch of our civil polity supports and is supported, regulates and is regulated, by the rest; for the two houses naturally drawing in two directions of opposite interest, and the prerogative [power] in another still different from them both, they mutually keep each other from exceeding their proper limits.

Parliament and representation

The House of Lords represented the nobility of Great Britain. The U.S. Constitution was written to prevent nobility from having a part in American government. Article I, Section 9, says, "No title of nobility shall be granted by the United States." The Constitution of 1787 also provided that the so-called upper chamber of Congress, the Senate, would be selected by the state legislatures every six years. Members of the Senate would not automatically hold the office for life, and the office would not be hereditary, as in the House of Lords.

Yet some of the Founding Fathers liked to think of an American nobility that would be represented by the Senate. Writing in The Founders' Constitution, editors Philip B. Kurland and Ralph Lerner observed, "It was generally the case that the property qualifications for electing state senators and for holding the office itself were higher and more restrictive than for electors and members of the first [lower] house." In a letter to Samuel Adams in 1790, John Adams wrote:

The nobles have been essential parties in the preservation of liberty, whenever and wherever it has existed. In Europe, they alone have preserved it against kings and people, wherever it has been preserved; or, at least, with very little assistance from the people. . . . By nobles, I mean not peculiarly an her editary nobility, or any particular modification, but the natural and actual aristocracy among mankind. The existence of this you will not deny. You and I have seen four noble families rise up in Boston, —the Crafts, Gores, Dawes, and Austins. These are as really a nobility in our town, as the Howards, Somersets, Berties, &c., in England....
The numbers of men in all ages have preferred ease, slumber, and good cheer to liberty, when they have been in competition. We must not then depend alone upon the love of liberty in the soul of man for its preservation. Some political institutions must be prepared, to assist this love against its enemies. . . . The multitude [of free men], therefore, as well as the nobles, must have a check.

Colonial and state legislatures

In 1787, Americans had a century and a half of experience under state and colonial legislatures that were mostly bicameral. This history influenced the decision to propose a bicameral legislature for the new government under the Constitution.

Massachusetts

England created the colony of Massachusetts by charter in 1629. A charter was a document that established the boundaries of a colony and the rules for its governance. The original charter for Massachusetts said that the free men in the colony would annually elect a governor, a deputy governor, and eighteen assistants for operating the government. The population of free men, however, would make the laws.

In 1630, the colony changed this structure so that the free men would elect only the assistants. The assistants would then elect the governor and deputy governor and be solely responsible for making the laws. In other words, Massachusetts at the end of 1630 had a unicameral legislature.

As told by Thomas F. Moran in The Rise and Development of the Bicameral System in America, in 1631, the men of Watertown, Massachusetts, objected to a tax law passed by the assistants. In May of the following year, some of the free men of Massachusetts met in their towns to elect two deputies from each town. The deputies were to meet in the General Court (the name for the government) to advise the governor and assistants. For the next four years, the deputies and assistants met and voted on legislation as one body of government.

In 1636, the General Court decided that the assistants and deputies should vote as separate chambers. The decision was necessary because two years earlier, a question came before the General Court that divided the assistants and deputies, namely whether the people of Newtown could move to another part of the colony. Counted together, the votes of the deputies and assistants would have approved the request. Counted alone, the votes of the assistants would have denied the request. The request was eventually resolved when the towns of Boston and Watertown gave some land to Newtown. But the deadlock over the issue made it necessary to make the deputies and assistants two chambers in a bicameral legislature.

Eight years later, sitting as a court of law, the General Court had to decide whether a pig held by a man named Captain Keayne was really owned by a poor woman named Mrs. Sherman, who claimed that the pig had wandered away. Still sitting together though counting their votes separately, the assistants and deputies divided vigorously on the question. According to Moran, "As an outcome of the controversy the General Court resolved that the two bodies should sit apart, that bills [of law] might originate in either, and that a bill having passed one house should go to the other for 'assent or dissent' [agreement or disagreement]." Hence, Massachusetts started with a unicameral legislature, but ended up with a bicameral one.

New Jersey

The history of bicameralism in New Jersey is an example of the struggle between aristocracy and free men. New Jersey became a colony in February 1665. The charter was called "The Concessions and Agreement of the Lords Propriators of the Province of New Cesarea or New Jersey to and with all and every the Adventurers and all such as shall settle or plant there." The Concessions was a contract, or agreement, between the English men, called proprietors, who would oversee the colony for Great Britain, and the free men who would settle in the colony.

The Concessions created a government composed of a governor, a council, and an assembly of deputies. The proprietors would appoint the governor, who in turn would appoint the council. The free men of New Jersey would appoint the deputies. The Concessions said that the governor, council, and deputies would serve as one body, not as three branches.

As told by Moran, the governor first called the council and deputies into session in May 1668. At the time there were seven councilors and ten deputies. The councilors insisted on sitting as a separate branch of government. Otherwise, the ten deputies could always outvote them when the free men wanted something that the proprietors did not. Although their wish was contrary to the Concessions, the councilors won the argument, at first.

By November of that year, however, the deputies refused to continue sitting separately from the council. Four years later, the free men set up a government separate from the one created by the Concessions. This led the governor and council to send two men back to England to ask the proprietors for help with the situation.

In December 1672, the proprietors signed a new document, called a Declaration. The Declaration said that under the original Concessions, the governor and council were supposed to sit together, separate from the assembly of deputies. Further, any law proposed by the deputies would have to be approved by the governor and council.

The free men of New Jersey did not like this turn of events. In October 1681, the deputies wrote a letter saying that, in their opinion, the Declaration was a violation of the original Concessions. So the deputies asked that the Declaration be nullified, or cancelled, and that the government sit as a single body.

The following month, a group of councilors visited the deputies, asking them to meet to discuss the situation. When

Benjamin Franklin and Unicameralism

Most delegates to the Constitutional Convention supported bicameralism, a legislature with two chambers. Benjamin Franklin (1706–1790), a delegate from Pennsylvania, was one of the exceptions.

One of the arguments in favor of bicameralism was that one chamber should represent the wealthy class of society, while the other should represent all free men. In 1789, the state of Pennsylvania considered a change from unicameralism to bicameralism in its government. That year, Franklin wrote Queries and Remarks Respecting Alterations in the Constitution of Pennsylvania to record his opposition to bicameralism.

The Combinations of Civil Society are not like those of a Set of Merchants, who club [combine] their Property in different Proportions for Building and Freighting a Ship, and may therefore have some Right to vote in the Disposition of the Voyage in greater or less Degree according to their respective Contributions; but the important ends of Civil Society, and the personal Securities of Life and Liberty, these remain the same in every Member of the society; and the poorest continues to have an equal Claim to them with the most opulent [wealthy], whatever Difference Time, Chance, or Industry may occasion in their Circumstances. On these Considerations, I am sorry to See the Signs this Paper I have been considering [the proposed Pennsylvania Constitution] affords, of a Disposition among some of our People to commence an Aristocracy, by giving the Rich a predominancy [superior power] in Government, a Choice peculiar to themselves in one half the Legislature to be proudly called the UPPER House, and the other Branch, chosen by the Majority of the People, degraded by the denomination [name] of the LOWER; and giving to this Upper a Permanency of four Years, and but two to the lower.

Franklin felt that every member of society should have an equal say in the legislative branch of government. He disagreed with the theory of bicameralism that favored one chamber for the wealthy and another chamber for the rest of society. Pennsylvania disappointed Franklin, however, by adopting bicameralism in its new constitution.

the deputies refused, the councilors delivered a letter saying the assembly of deputies was dissolved. The letter, according to Moran, compared the deputies with the angel Lucifer, who, in Christianity, fell to hell after trying to take over heaven: "It was Lucifers Pride that Putt him upon settling himselfe where God never intended to sett him and his Presumption produced or was the forerunner of his fall."

Articles of Confederation

Beginning in 1781, the government of the United States operated under the Articles of Confederation. The Articles created a unicameral legislature, called Congress, without a separate executive and judicial branch. While the men who wrote the Constitution in 1787 rejected this structure, many of the powers of Congress under the Articles became the powers of Congress under the Constitution.

For the Founding Fathers, one of the primary purposes of federal government was to protect America in war. So the Articles of Confederation gave Congress the power to establish an army and a navy, to make the rules for their operation, and to determine questions of war and peace. Congress under the Constitution has the same powers, although the president of the United States often engages in military action without a declaration of war by Congress.

Promotion of commerce was another primary purpose of federal government for the Founding Fathers. Under the Articles of Confederation, Congress had the power to create money and post offices. It also could appoint courts for handling trials of people accused of piracy, or robbery on the high seas. Congress also had the power to regulate trade with American Indian tribes. Congress under the Constitution has all these powers, too.

Finally, Congress under the Articles had the power to make a budget and raise or borrow money for operating the nation's government. In practice, Congress had difficulty making the states contribute their share of money. This was one of the main reasons that the Founding Fathers decided to meet in 1787 to create a new federal government. The Constitution they wrote gave Congress stronger power to raise and collect money through taxes.