Legislative Branch Background


Article I of the Constitution focuses on Congress and the legislative powers it exercises. Article I is the longest in the Constitution, suggesting the importance of Congress and the legislative power to the constitutional arrangement of American government. Indeed, the idea of “legislative supremacy” has long been a part of Anglo-American political theory. 

The key to understanding the structure of the Constitution is recognizing that Congress is primarily a lawmaking body that must act consistently with the broad powers it has been given. The legislative power, while broad, is separate and distinct from the executive and judicial powers. The experience of America’s earliest constitutions shows that the lawmaking function of legislatures can be performed more effectively when the other powers of government are placed in separate hands.

Under the Constitution, the United States Congress is bicameral, meaning it is made up of two houses: the Senate and the House of Representatives. The Senate has 100 members, two from every state, and the House is made up of 435 members, apportioned to the several states according to their population. 

The Legislative Power

In Ancient democracies, legislative and judicial powers were placed directly in the hands of the people. All qualified citizens were eligible to meet in the assembly to debate specific questions of legislation or judge criminal cases. These assemblies could be very disorderly and impassioned. Socrates, for example, was condemned to death by an assembly consisting of hundreds of Athenians. And while assemblies meant that the power was ostensibly in the hands of the great body of the people, in reality the most popular speakers generally bent the popular will to their own purposes. During America’s Founding, this purely democratic mode was practiced in some New England townships, but all state and federal political arrangements had opted for representative democracy (known as a republican form of government).

Representative Democracy

In a representative democracy, the people select agents to decide questions of legislation on their behalf. In Federalist No. 39, James Madison describes a republic as “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure for a limited period, or during good behavior.”

Republican arrangements, the Framers believed, offered certain benefits over pure democracies. In the first place, choosing representatives meant that the resulting assembly of law-givers would be smaller. Simply limiting the size of legislative bodies, they believed, would of itself improve deliberation. James Madison explained in Federalist No. 55: “In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” Pure democracies tend to act on passion rather than reason, and that is the case no matter how wise or virtuous the citizens tend to be.

Representative democracies have the advantage of refining the lawmaking process. The act of electing representatives enables the citizenry to choose the ablest among them to serve in the law-making capacity. James Madison explained that this “refinement” of public opinions allows voters to select “a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations” (Federalist No. 10). Legislative power in a republic is thus derived entirely from the people, but it reflects the best aspects of the people.

Finally, as Madison pointed out in Federalist No. 10, only in a representative democracy is it possible to have a popular form of government over an extended sphere. Pure democracies must be small to enable all the citizens to gather in one place. If the law-givers are representatives of the people, however, then a popular form of government is possible over a territory as large as the United States. Because a large territory comprehends a “multiplicity of interests” (Federalist No. 51), unjust interests (or factions) are unlikely to gain a majority. Large republics will therefore be more temperate and less tumultuous than small democracies.

Congress under the Articles of Confederation

Congress, as a national representative law-making body, pre-exists the Constitution and even the Articles of Confederation. It was “In Congress” that the states declared independence from Great Britain. The Continental Congress met twice before the Articles of Confederation formally established the Confederation Congress. The Confederation Congress was, in some respects, a powerful actor than the Congress we know today under the Constitution. Under the Articles, Congress exercised plenary control over all governmental matters, including the selection of executive and judicial officers. In practice, however, since the Articles vested almost all executive and judicial powers in the states rather than the federal government, the Articles government was notably weak, because it lacked the necessary authority to enforce the laws passed by Congress. By contrast, under the Constitution, Congress is generally limited to exercising legislative power with respect to issues of federal concern, though it is a much more powerful body than its predecessor. Congress retains some non-legislative powers, such as the power to impeach and the duty to advise and consent on the appointment of certain federal officers.