Article I: Legislative Branch

Article I is the longest of the seven articles that compose the Constitution. The framers established the Congress in Article I, even before establishing the presidency (Article II), because they believed that the legislative branch should be pre-eminent in American government. Article I consists of ten sections, some of which are further subdivided by clauses.

The framers left it up to the states to determine who may vote for members of Congress. Prior to the Civil War, most states restricted voting to white male property owners over the age of twenty-one. Over time, the property requirement was dropped. African-Americans, other minorities, and women also were granted voting rights.

Creating the House and Senate

Article I, section 1 of the Constitution establishes the Congress as the first branch of government with one sentence. Section 2 establishes the House of Representatives and contains five clauses. Clauses 1 and 2 lay out the qualifications for serving in the House of Representatives, and the process for House elections.

As we learned in Chapter 1, a state's representation in the House is based on its population size. The Constitution guarantees that each state will have at least one representative, and it originally called for one representative for every 30,000 citizens. That number has increased to 600,000 citizens per representative over the years. Today, the number of representatives is capped at 435. Section 2 also states that when a vacancy occurs in the House, the state's governor must call a special election to fill it. Clause 5 gives the House — and only the House — the power to impeach elected officials. The framers considered impeachment to be one of the most potent checks in American government. They believed that it should only be used sparingly, and with the consent of the people.

Many people don't really know what it means to “impeach.” Impeachment is an accusation of wrongdoing brought against a federal official with the intent of removing him from office. In order to be removed, however, the impeached person must be convicted by the Senate.

Section 3 establishes the United States Senate. Originally, the Constitution called for senators to be chosen by their respective state legislatures. The framers did this because they wanted the Senate to be insulated from politics — a place where issues could be deliberated freely without the specter of electoral politics. They also gave senators six-year terms instead of two-year, which they thought would further remove them from the popular passions of the day.

Section 3 also establishes qualification for office, Senate leadership, the role of the vice president, impeachment trials, and the penalty for impeachment conviction. Under clause 7 of section 3, the only penalty for impeachment is removal from office. It does state, however, that the impeached individual may still be tried in both criminal and civil courts.

Provisions for Running the Show

The next three sections establish the procedures for operating both the House and the Senate. Some of the more interesting provisions include the following:

  • Congress must assemble at least once a year. When travel was difficult during the early years of the Republic, Congress did convene only once a year. In fact, most members held full-time jobs while Congress was out of session.

  • Both chambers may refuse to seat a member. Although this is rarely done, it has occurred on occasion. After scandal-ridden Representative Adam Clayton Powell was elected to his twelfth term in 1968, Congress refused to seat him — his seat remained unoccupied.

  • Both chambers must publish a journal of their proceedings after each session.

  • Neither chamber can recess for more than three days without the consent of the other chamber.

  • Congressional salaries are paid by the Department of Treasury, not by the respective states. The framers wanted all members to be paid equally, and did not want to give states undue influence over their representatives. Members of the first Congress received $6 for every day in session!

  • Members of Congress cannot be arrested or sued for things said during speeches and debates made in the Capitol Building. This provision was included to encourage free and open debate.

  • Members of Congress cannot simultaneously hold another federal government position. This provision was included to avoid any violations of the separation of powers clause.

  • The Powers of Congress

    Most scholars consider sections 7 through 10 of Article I as the most important in the Constitution, because it outlined the Congress's powers and limitations. Section 8 is the longest of the Constitution with its eighteen clauses. Three in particular are considered the most important:

    • Commerce Clause. Clause 3 gives the Congress the power to regulate interstate commerce and trade with foreign nations. Over the years, the commerce clause has expanded to give Congress the ability to more or less regulate the national economy. Recently, there has been an attempt by the courts to “roll back” the power of the commerce clause in keeping with the framers' original intent.

    • Declaring War. Clause 11 gives Congress — not the president — the power to declare war. The framers did not trust the president to declare war; they feared that the power could easily be abused by a would-be dictator or tyrant. Since the Korean War, Congress and the president have struggled to find a balance between the right of the Congress to declare war and the role of the president as commander in chief.

    • The Elastic Clause. Clause 18 of section 8 gives Congress the power to make all “necessary and proper” laws that would help execute the enumerated powers of the Constitution. Many scholars consider this the single most important provision of the Constitution — the clause that makes it a “living document.”

    The framers explicitly denied certain powers to both Congress and the states. Section 9 prohibits Congress from passing any law that inflicts punishment on an individual without a trial or provides punishment for acts that weren't illegal when the act was committed. It also prohibits Congress from taxing commerce between the states.

    One of the more obscure — and interesting — provisions in the Constitution is clause 8 of section 9, which prohibits the federal government (as well as the states) from granting a title of nobility, such as duke or duchess, to citizens and noncitizens.

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