An Introduction to the U.S. Congress, Part 1

Welcome to your Introduction to Congress, Part 1!

Reading time: 1 hour.

Part 1 focuses on why we need a Congress and why it is set up as it is. We will also explore how Congress is empowered and limited by the Constitution and how it interacts with the other parts of our government. Part 2 (pending) focuses on how Congress is organized, who the key players are, and how they work (or choose not to work) together.

By the end of this course, you will be able to

• Understand why we need Congress
• Explain how worries about centralized power and majority factions shaped the Congress
• List Congress’s powers and limits
• Explain two ways Congressional powers have changed over time
• List several ways you can have a productive impact on Congress

Along the way, you will be introduced to some of the key debates about various parts of the Constitution.

People have disagreed over how to interpret the Constitution from its earliest days onward. We have provided links throughout the text to resources that will acquaint you with some of the key debates. Among these are the National Constitution Center and the Congressional Research Service.

Lesson 1. Why Do We Need Congress?

We need a way to solve national problems that can take into account the interests of all the people, with full accountability to all the people, and without majorities oppressing minorities.

Every country has some problems that can’t easily be solved by just a few citizens or businesses, nor by just a few state governments.

• Some problems require a national response, like defense against foreign enemies and border security. United we stand, divided we fall.
• Some problems require laws that are binding on all state governments. For example, free trade requires each state to refrain from obstructing commerce between citizens and firms of different states.
• Some problems require laws that are binding on all citizens. An example would be prohibitions against enslavement by any person or business. Another example would be the need for all citizens to honor patents and trademarks.

In some places and times, such laws are controlled by a king, a dictator, a junta, or a one-party state. The laws in those places generally benefit only a favored few people and often tyrannize some or all of the general population. There is little, if any, representation of the people nor accountability to the people. (For more comparisons with autocracies, see Democracy is Precious.)

Our history, however, is one that rejected the rule of kings and unrepresentative parliaments in favor of laws made by legislators who are accountable to the people. The Declaration of Independence (1776) put that rejection into words. It contains a long list of complaints about the abuse of power by the government of Great Britain.

The leaders of the newly independent states wanted to avoid anything like the British tyranny they were fighting. In trying to avoid that abuse, they created a confederation of state governments. The Articles of Confederation (1781-1789) prioritized the autonomy of the states (Article 2). The Confederation lacked the authority to levy taxes or regulate commerce. Congress could ask the states for money, but few were willing to comply after the War of Independence was won. Without tax revenue, the Confederation accumulated debt and could not pay the Revolutionary soldiers for their service.

The powerlessness of Congress under the Articles of Confederation convinced many of the men who would become our Constitution’s framers that a stronger national government was required. To achieve that goal, the Articles of Confederation needed to be reformed or replaced. The framers chose to solve the problem by writing a new constitution. The delegates to the Constitutional Convention of 1787, however, remained quite wary of creating a new national government with too much concentrated power.

At the same time, the framers knew that “we the people” could be problematic too. Then, as now, people quarreled over what problems needed government attention and how those problems should be solved. As James Madison said in Federalist 10, “A zeal for different opinions … have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good.”  

‘The framers expected that people would naturally divide themselves into various factions, especially when advocating for their rights and privileges under the law. They saw several factional issues:

• Some members of the land-owning class worried that the more numerous poor citizens might use the government to expropriate their property.
• Some did not trust that the leaders of a new federal government would understand the needs of all the citizens in a territory as large as the 13 former colonies. Some were inclined to give more trust to their state governments.
• Some members of the less populous colonies did not trust the larger population colonies not to dominate them.
• Some members of colonies whose economies were built on enslaved labor worried that slavery would be outlawed.
• Some of the framers were concerned about respect for religious differences. Many of the original colonies were set up as refuges from European persecution. Maryland, for example, was established as a refuge for English Catholics but was tolerant of its many Protestant settlers.
• Some of the factional tensions had a regional flavor:[i] most of the northern colonies were established for religious reasons, while most of the southern colonies were set up as business ventures. The southern states were mainly rural and relied heavily on enslaved Black people to labor on their farms, while the northern states were a bit more urbanized with more diversified economies.

Each of those factions were necessarily wary of their rivals. As Madison observed, any faction gaining control of the national government through majority rule could tyrannize its opposition.

Madison and the other framers were not against majority rule, but they did seek a way to prevent majorities from becoming tyrannical.

As Madison said in Federalist 10, “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed.” Overall, the framers faced a fundamental challenge.[ii] How could they set up a new form of national government strong enough to defend the nation and enforce its laws while also avoiding the tyranny made possible by centralized power and majority factions?

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[i] This section draws on summaries of the colonies found in https://www.ushistory.org/us/index.asp

[ii] Coming up with a solution was not easy. For some insight into the frustration of those involved, read Federalist 37 and 38.

Lesson 2. How Did the Framers Invent a Way to Govern Despite Distrust?

The framers set up a system where elected officials do not need to like or trust each other to solve problems together – provided they are willing to compete and sometimes trade, compromise, or collaborate.

They did this by creating a system that reduced fears that the powers of the new national government could be used to tyrannize the people.

Their new system of national government involved three key elements:

1. Representation of, and accountability to, the people;
2. Dilution of power through the separation and sharing of powers; and
3. A Bill of Rights (which grew over time).

As you will see in Part 3, these three elements strongly inform what Congress can and cannot do.

A. The framers required representative democracy as a way to create accountability to the people.

Under representative democracy, only elected representatives of the people can make laws. Laws may not be made by kings, presidents (elected or not), judges (elected or not), military officers, private militia, or drug lords. (See our course America: Republic or Democracy to learn more.)

Representative democracy was a major improvement over the British parliament which did not represent the American people and was not accountable to them. The very idea of representation was one of the central reasons for the American Revolution.

“No taxation without representation” is a slogan from the American Revolution. It expressed one of the main complaints of the American colonists against Great Britain: they believed taxes imposed by the British were not legitimate because the colonists were not represented in the British parliament. Representative democracy in the national government was also a big change from the Articles of Confederation that preceded our Constitution. Under the Articles of Confederation, representation was limited to state governments, not the people themselves. Each state government had one vote in the Confederation Congress, and state delegations to the Congress (from all but two states) were chosen by their state legislatures.

Did you know? The framers thought of representative government as the major requirement for republics. For example, in Federalist 39, Madison defines a republic this way, “we may define a republic to be, or at least may bestow that name on, 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.”

He went on to add, “It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people; and that they hold their appointments by either of the tenures just specified.”

Note: The framers relied on representative democracy not only to create accountability to the people but also to avoid the problems of direct democracy. Nowhere in the new government were the people to participate directly.

Exactly how to make the change to representative democracy was a much-debated topic during the Constitutional Convention. There were three main issues, each drawn from the tensions we listed in Part 1:

• Should Congress derive its power from the people or from the state governments?
• Should large states be balanced against small states?
• Should enslaved people be counted towards a state’s population?

People or state governments: Some delegates to the Constitutional Convention favored a Congress that would derive its power only from the state governments. They preferred that the United States should remain a confederation of sovereign states. This point of view was common among the delegates from the smaller states. (See also the next topic below.)

By contrast, James Madison and James Wilson argued that direct elections were necessary to connect the national government to the people. This notion is famously illustrated by the opening line of the Constitution, “We the people of the United States.” They believed representatives elected by the people from voting districts would be the best way to do that.

Large versus small states: Some delegates from states with small populations feared the states with larger populations would dominate them. By contrast, some delegates from the large states believed their states should have more representation because their states would contribute more to the nation’s budget and defense. There was general agreement, however, that there should be a census every ten years to keep track of changes in state population sizes.

The delegates were presented with two competing proposals to solve the two problems. The Virginia Plan proposed the allocation of Congressional seats in the House and Senate should be proportional to state populations. States with large populations would have more seats than those with small populations.[i] By contrast, the New Jersey Plan, favored by the smaller states, proposed equal representation for each state in just one legislative chamber.[ii]

The Great Compromise: The bicameral (two-chambered) Congress that we have today came from a compromise between the two competing plans. The framers set up a House of Representatives, where the allocation of seats is proportional to state populations, and a Senate, where each state has two senators. The delegates passed this plan by just one vote. These choices form the basis for Article 1 of the Constitution.

• Members of the House (representatives) are elected by citizens from their districts, with more House seats allocated to more populous states. They hold their seats for two years and then need to be reelected or move on to other things.
• Members of the Senate (senators) used to be elected by their state legislatures. The Seventeenth Amendment changed that, so citizens of each state elect their senators. Senators serve for six years before having to be reelected or leave.

FOR REFLECTION: The debate over how to balance representation of the people and representation of the states was deeply contentious. The proposed compromise almost failed: out of 10 state delegations voting, five voted in favor, four against, and one (Massachusetts) was divided.
Since then, the population has grown, but the House has not kept up.[iii] The number of people per representative has increased far beyond the 30,000 the framers required in Article 1, Section 2.
In addition, the number of states has grown, and the population shares within each state have shifted – due to the elimination of the three-fifths rule by the Fourteenth Amendment, urbanization, new waves of immigrants, and several internal migrations.
Small states far outnumber the large in the Senate, but a few large states outweigh the smaller states in the House. Voting patterns in large versus small states, which used to be somewhat similar, have diverged too, particularly from 2015 onward.[iv]
Is it time to revisit the way Congress is set up? How would your position change if you supported a different political party?

Enslaved people: The framers debated who to count in the census. This disagreement came from the decision to make representation in the House proportional to state populations. Southern delegates argued that enslaved people should be counted in the census, thus giving them more delegates. Northern delegates argued against this. Those who opposed slavery worried that counting enslaved people would give the southern states more power in the House to continue the practice of slavery. The delegates settled on a compromise referred to as the Three-Fifths Compromise. Each enslaved person would be counted as three-fifths of a free person.

All people are now counted equally, following the Thirteenth Amendment that outlawed enslavement.

FOR REFLECTION: If representation in the House must be proportional to the population, then what does this imply about the need for a regular, accurate census?

B. They created a system of checks and balances between separated powers.

Some of the framers were worried that the new national government could become too tyrannical if its powers were too centralized. Others worried it might not be powerful enough. Reflecting concerns raised in Part 1, three big questions stood out:

• Would the federal government be strong enough to deal with external and internal threats?
• Would the federal government respect the sovereignty of the states?
• Would a new federal government in a territory as large as the original 13 states be too distant from its citizens to understand their needs?

In the end, they came up with a two-part solution to the dangers of overly centralized power. We will cover those next.

Between the federal government and the states. The first part of their solution was to create a strong federal government with limited powers while leaving the states and the people generally sovereign in all other powers. The state governments would maintain their local connections to their citizens and represent them indirectly in the U.S. Senate, thus resolving the issue of distance. (To learn more, check out our course on U.S. Federalism.) The overall effect was to create a system of separate and shared powers between the federal government and the states.

• Most notably, the 10^th Amendment reserves for the states all powers not explicitly delegated to the federal government, nor denied to the states, by the U.S. Constitution.
• This separation of powers is accompanied by a few shared (or concurrent) powers. See Article 1, Section 10.
• The federal government can check (stop) state policies that rely on powers constitutionally delegated to the federal government – if the Appellate Courts or the Supreme Court agrees.
• The states can stop federal policies that rely on powers not explicitly denied to the state governments – or that are unconstitutional in some other way – if the Appellate Courts or the Supreme Court agrees.

Within the federal government. The second part of their solution was to create a system of checks and balances through the separation and sharing of powers between the three government branches – and within Congress itself. A phrase within Federalist 51 captures the core idea elegantly, “Ambition must be made to counteract ambition.”

The choice to separate and share powers in a system of checks and balances was a reaction to fears laid out in Federalist 47 by James Madison. In his words,“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”  He spelled out three specific timeless risks:

1. “When the legislative and executive powers are united in the same person or body, there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner.” At least two historical examples were available to Madison and the other framers: the British parliament without a monarch (1649-1660) and the several legislative powers of the monarch under George III (1760-1820).
2. “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.” This combination was frequently seen in Great Britain in the framer’s time.[v] It was duplicated to some extent in some of the states. Madison, again in Federalist 47, gives many examples from the state governments where this joining was allowed.
3. “Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR.” Henry the Eighth is a good example. Although he is most famous for beheading two of his wives, he ordered the execution of thousands of people for heresy, treason, and for denying his royal supremacy as head of the English Church.[vi]

Here are the key elements of the checks and balances built into the Constitution:

• To keep the congressional and executive branches separated, Article I, Section 6 of the Constitution prohibits members of Congress from holding positions in the executive branch.[vii] This prohibition makes it impossible to establish a parliamentary system of government.[viii]
• The Legislative Branch (Congress):
  • Congress is divided against itself by design.[ix] The House of Representatives and the Senate must agree on any legislation before it becomes law. (Article I, Section 7).
  • Congress makes federal laws, but Article I, Section 7, gives the president the power to veto legislation unless both houses of Congress can overcome the veto with a two-thirds or better vote.
  • Congress has budgetary powers. Without the funding that Congress chooses to provide by law, the other branches will not have any resources to do anything.
• The Executive Branch (The presidency and executive agencies):
  • Article II, Section 2, Clause 2 requires the president to seek the advice and consent of the Senate when making treaties and appointments of key officials such as ambassadors, Supreme Court justices, and many other executive office officials. (For more on this subject, see our course on the Presidency, Part 3.)
  • The executive branch cannot act independently of the law. It must take care to faithfully implement and enforce federal laws (Article II, Section 3). If it does not, Article II, Section 4 states that the president, vice president, and all civil officers of the United States can be removed by impeachment if convicted of treason, bribery, or other high crimes and misdemeanors.
• The Judicial Branch (The Supreme Court and appellate courts):
  • While the Supreme Court can interpret the constitutionality of a law or executive action, Article III, Section 2, Clause 2 allows Congress to control the laws the courts may review. Congress also has a role in advising and consenting to the appointment of Supreme Court justices (Article II, Section 2, Clause 2) and has the power to impeach those justices (Article II, Section 4).

NOTE: The combination of representative democracy with an elected president and the separation and sharing of powers is consistent with the modern definition of a republic. (See our course America: Republic or Democracy to learn more about such distinctions.)

FOR REFLECTION: The system of government set up by the framers creates multiple opportunities for political power to be divided and shared between the main political parties. Between the federal government and the state governments, across the state governments, between Congress and the presidency, and even within Congress.
Do you think this system forces the parties to work together, or does it make gridlock inevitable – or does the answer depend on circumstances? If you think circumstances matter, then how and why?

C. They created a Bill of Rights

The so-called Anti-Federalists were not satisfied the dispersal of power proposed by the Federalists was sufficient protection against tyranny.

They wanted specific remedies for some of the tensions we identified in Part 1. Among other things, they wanted rights to worship as they pleased, to engage in politics, to engage in commerce and invest in property, and to be free from unjust government prosecution.

The solution to their demands was the addition of a Bill of Rights to the Constitution. These were the first ten amendments to the Constitution.

Most of the Bill of Rights involved so-called negative rights. Negative rights prohibit Congress from making laws that limit or deny specified rights.

Negative rights can be found within the Bill of Rights and the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments.

By contrast, a positive right would require the government to act to uphold a right. Examples of positive rights can be found in many state constitutions: the right to a public school education is an example. Taken together, these three elements (representative democracy, checks and balances through separation and sharing of powers, and a variety of positive and negative rights) strongly shape the powers that Congress has and how they may be used. We explore those powers next.

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[i] Under the original Virginia Plan, the largest states would have the most seats in each chamber – but representatives in one chamber would be elected by citizens (the House) and by state legislatures in the other (the Senate).  https://www.archives.gov/milestone-documents/virginia-plan

[ii]  The authors of the new Jersey Plan wanted to be consistent with the preceding Articles of Confederation that had set up a national legislature with just one chamber (a unicameral Congress). 

[iii] Congress rarely adhered to Article 1, Section 2 which required no more than 30,000 people per House representative. In 1929, Congress limited the House to 435 members.

[iv] Author’s analysis of data provided by VoteView.com.

[v] “The History of Parliament: British Political, Social & Local History.” From https://thehistoryofparliament.wordpress.com/2023/04/26/liberalism-the-law-and-parliament-in-modern-british-history/

[vi] “The killer king: How many people did Henry VIII execute?” From https://www.history.co.uk/article/the-killer-king-how-many-people-did-henry-viii-execute

[vii] There are no federal constitutional prohibitions against members of the judiciary serving in the executive branch, nor the joint holding of federal and state offices.

[viii] In parliamentary systems, the executive is a prime minister who derives legitimacy from their ability to command the support (“confidence”) of the parliament, to which it is accountable. Members of the cabinet are also ministers or members of the parliament. They often belong to the same party as the prime minister.

[ix] James Wilson, representing Pennsylvania at the Convention, cautioned that “if the Legislative authority be not restrained, there can be no liberty nor stability.” He added that legislative power “can only be restrained by dividing it within itself, into distinct and independent branches. In a single house there is no check, but the inadequate one, of the virtue [and] good sense of those who compose it.”

Lesson 3. What Powers Are Assigned to Congress?

In this section, you will learn what Congress must do, can do, and cannot do within the system of checks and balances summarized in Part 2. You will also learn two ways that congressional powers have changed over time.

Getting the allocation of powers right can make all the difference between a system of government that prioritizes justice, happiness, and liberty (as in the Preamble to the Constitution) versus an autocracy set up to serve a few powerful families or military leaders.

A. What Congress must do

Most of the Constitution sets out what Congress may do and what it cannot do. There are, however, a few things it must do.

• It must assemble at least once a year, per Article I, Section 4 (as modified by the 20th Amendment, Section 2).

Congress must be accountable to the citizens:

• Congress must publish a regular Statement and Account of the Receipts and expenditures of all public money, per Article I, Section 9, Clause 7. You can see this accounting from the Congressional Budget Office here.
• “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one-fifth of those Present, be entered on the Journal.”  See Article I, Section 5.

B. What Congress can do is limited

The framers were careful to limit the power of the federal government by setting out lists of powers that Congress does and does not have. The powers assigned to Congress are often referred to as the enumerated powers. Those Congress does not have are sometimes referred to as powers denied.

The enumerated and denied powers have been modified by the Bill of Rights (the first ten amendments) and many of the amendments that followed.

Here are some important examples of what Congress can and cannot do.

Public services: Congress shall provide for our defense against external and internal threats. It may encourage commerce in specific ways, such as by building post offices and roads. It may regulate commerce between the states and with other countries. Congress may tax and spend to provide these any other public services it may have created.

Political, civil, and economic rights: Congress may not make laws that infringe on certain rights. Among these are the right to worship as we please without government direction, free speech, freedom of assembly, freedom of the press (media), and freedom from cruel and unusual punishment. It may also support positive rights such as national security, property rights, and speedy, open trials by jury for most common law and civil cases.

You can see lists of enumerated and denied powers in the following two sections. If you have the time, it is worth a look. If not, you can skip ahead.

1. Enumerated powers

What Congress can do is set out in Article I, Section 8, and portions of other Articles III, IV, and V.

To provide for the “common defense and general welfare of the United States,” Article I, Section 8 grants Congress the power to:

• Raise funds through taxation (taxes, duties, excise, and imposts) and borrow to pay debts and provide for our defense and general welfare (Spending Clause and Borrowing Clause)
• Regulate commerce with other countries, among the states, and with the indigenous tribes (Commerce Clause)
• Establish rules on naturalization^[i]
• Encourage commerce in the following ways
  • Establish laws on bankruptcies
  • Create and regulate currency (money)
  • Maintain standards for weights and measures
  • Establish post offices and roads
  • Promote science and arts through the protection of intellectual property (copyrights and patents)
  • Create the lower courts
• Provide for our defense in the following ways
  • Define and punish maritime crimes and war crimes
  • Declare war
  • Issue letters of marque and reprisal and make rules regarding captures land or waters[ii]
  • Raise and support an army (limited to no longer than two years)
  • Provide and maintain a navy
  • Make rules regarding armies and navies
  • Organize, arm, train, and call upon the militia to execute laws, suppress insurrections, and repel invasions
• Make all laws that are necessary and proper for carrying out the powers listed above (See Implied Powers below.)

Congress has some power over the organization and staffing of the executive branch.

• This power comes from Article II, Section 2, Clause 2, which says Congress “may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” (For more on this subject, see our course on the Presidency, Part 3.)

Congress has some control over the judicial branch.

• Article III, Section 1 creates the Supreme Court and gives Congress the power to create or disband courts below the Supreme Court. The first Congress immediately used this power to establish the appellate and district courts through the Judiciary Act of 1789.
• Congress also used the Judiciary Act of 1789 to set the number of Supreme Court justices to a total of six. Congress has changed this number several times, from a low of five to a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine, with no changes since then.
• Congress has a role in advising and consenting to the appointment of Supreme Court justices (Article II, Section 2, Clause 2).
• It also has the power to impeach those justices (Article II, Section 4).
• Article III, Section 3 gives Congress the power to determine the punishment for treason.
• The framers also set some limits on how Congress may control judicial powers. Some of these are reviewed in the section below.

Congress has the power to admit new states to the union and to make regulations concerning U.S. territories and properties, per Article IV, Section 3.

Congress can propose amendments to the Constitution via Article V.

• The amendment process is difficult. Two-thirds of each chamber must vote for any proposed amendment. After that, three-quarters of the states must ratify the amendment before it is added to the Constitution.
• Alternatively, two-thirds of the state governments could call for a constitutional convention to propose one or more amendments – which would then need to be ratified by three-quarters of the states.

2. Denied Powers

What Congress cannot do is set out in Article I, Section 9, portions of the Bill of Rights,and subsequent amendments.

Under Article I, Section 9, Congress is prohibited from:

• Suspending Habeas Corpus^[iii] unless there is a rebellion or invasion
• Punishing an action that at the time was legal but later became illegal
• Establishing taxes on people and land that are not established on a per-capita basis (this prohibition was superseded by the 16th Amendment in 1913)
• Taxing exports from a state
• Favoring some states over others when regulating ports and port revenues
• Drawing money from the Treasury without a law
• Granting any titles of nobility

The Bill of Rights (The first ten amendments to the Constitution):

• Under the First Amendment, Congress is explicitly prohibited from making any laws that limit many of our key rights. Congress may not make any laws that create a religion nor favor an established religion. It shall make no laws that undermine or limit our rights to worship as we please, speak freely, publish in the media, assemble, and petition the government. Some of these prohibitions have been the focus of several controversies. See links to several essays from the National Constitution Center on these debates here.
• The Second Amendment says, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Some competing expert opinions on how this Amendment is to be interpreted can be found in this link from the National Constitution Center.
• The Fourth, Fifth, and Eighth Amendments address concerns about a heavy-handed judicial system. These amendments prohibit Congress from passing laws that would allow
  • unreasonable searches and seizures
  • felonies to be tried without indictment by a grand jury
  • people to be tried more than once in federal court for the same offense
  • forcing people to answer questions that might incriminate them
  • excessive bail or fines
  • cruel or unusual punishments
• Part of the Fifth Amendment also addresses the fears about the expropriation of property noted in Part 1. Congress is prohibited from taking private property without due process of the law and further prohibited from taking property for public use without “just compensation.”
• The interpretation of these rights has varied over time. The National Constitution Center captures some of the debates in their descriptions of each amendment. To get started, click here.

WORTHY OF NOTE: The Bill of Rights did not initially apply to state governments. It was thought to apply only to the federal government. In 1833, the Supreme Court ruled in Barron v. Baltimore that the Bill of Rights applied only to the federal government. Not until the 1920s did a series of Supreme Court decisions interpret the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights, making those portions, for the first time, enforceable against the state governments. Wikipedia provides a good summary of each of the amendments in this link.

More Negative Rights in Other Amendments:

• The Fifteenth Amendment (1870) says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” 
• The Nineteenth Amendment (1920) says, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
• The Twenty-Fourth Amendment (1964) says, “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay a poll tax or other tax.”
• The Twenty-Sixth Amendment (1971) adds, “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”

SURPRISING FACT: The Constitution and its amendments prohibit the federal government from infringing on our voting rights, but it does not confer a positive right to vote. In fact, our voting rights are set out in each of our state constitutions, consistent with Article 1, Section 2 of the federal Constitution. That being the case, the eligibility to vote is controlled by the states and may vary from state to state. Ballotpedia provides links to each state’s constitution.

C. Congressional limits include some room for maneuver

Some people believe Congress sometimes claims more law-making power than what is enumerated in the Constitution. In fact, several Constitutional provisions allow that! These include powers that are implied, needed for enforcement, or inherent to any government.

Implied powers: The framers realized that Congress might sometimes need additional powers to carry out Constitutional mandates. The Constitution, therefore, includes a specific provision for all such powers in the “Necessary and Proper” clause of Article I, Section 8. These are referred to as implied powers.

You should be aware of two main categories of implied powers, both equally important.

Oversight

• The power to make laws implies the power to see whether they were faithfully executed. Many oversight hearings conducted by congressional committees are open to the public and the media. You can find a schedule of congressional hearings on this link. You can also watch them: C-SPAN broadcasts many of these.

Making laws in support of Constitutional provisions

• The idea of implied powers goes almost back to the beginning. The Supreme Court ruled in McCulloch v. Maryland (1819) that Congressional powers included some implied powers.

Importantly, the Supreme Court clarified that “necessary and proper” does not require proof that something is absolutely necessary. Instead, Congress is itself the primary judge of what is proper in exercising its constitutional functions. As Chief Justice Marshall explained, “The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means . . . The power of creating a corporation is never used for its own sake, but for the purpose of effecting something else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them.”

In the case of McCulloch v. Maryland (1819), the enumerated power to coin (create) money, to borrow money, and to tax implied the power to create a national bank. Note: The national bank was eventually replaced by the Federal Reserve system we have today.)

• The implied power to make all necessary and proper laws has been controversial too. Some people believe the outcome of ongoing battles over what is necessary and what is proper could undermine the foundation for many of today’s federal agencies or their regulatory powers. See this essay from differing experts written for the National Constitution Center.

Through many Supreme Court decisions^[iv], the Commerce Clause has been broadly interpreted to allow the regulation of an increasingly integrated national economy where local activity affects interstate commercial activity. The Commerce Clause has been used to regulate immigration and interstate commerce, prohibit racial discrimination, establish federal law enforcement, break up monopolies, regulate labor standards, and support the Affordable Care Act. The wide range of laws springing from the enumerated federal power to regulate interstate commerce has been much debated.

Enforcement powers: In some cases, the Constitution and its amendments include the power to make laws necessary for the enforcement of Constitutional law. The first example can be found in the Thirteenth Amendment (1865), which includes the assertion that “Congress shall have power to enforce this article by appropriate legislation.” Several amendments that followed used the same formula: the Fourteenth, Fifteenth, Nineteenth, Twenty-third, Twenty-fourth, and Twenty-sixth.

Inherent powers: Finally, there are some powers considered intrinsic to the governments of all sovereign nations like the United States, even when they are not explicitly listed in the Constitution. These are referred to as inherent powers. One of these, the power to investigate, resides in Congress.

Investigatory power is inherent in the law-making role of any government. In the case of the United States, the power to investigate accrues to Congress since Article I assigns law-making to it. Congress needs information to do its job – whether that job is making laws, making budgets, advising and consenting on international treaties, advising and consenting on key appointments, or considering the impeachment of key officials. The first congressional investigation occurred in 1792 when the House of Representatives formed a committee to learn why General Arthur St. Clair was defeated in the Battle of the Wabash. Congress has conducted thousands of investigations since then, most meant to keep the executive branch and its departments and agencies within the Constitution and laws.

D. How have congressional powers changed over time?

The powers used by Congress have changed over time. There were two big changes.

• On the one hand, Congress gave away some of its power to the executive branch. Over time, the Supreme Court has allowed Congress to delegate a wide range of specific powers to the executive branch – despite Article I, Section 1 of the Constitution. Among these powers are a de facto power to initiate wars, play a substantial role in budgeting, regulate many aspects of the economy through executive agencies such as the Commerce Department, and use a wide variety of emergency powers covering a wide range of topics including the military, land use, public health, trade, federal pay schedules, agriculture, transportation, communications, and criminal law. To learn more, including about related debates, see Part 4 of our short course on the presidency.
• On the other hand, Congress found a way to increase its power in the states. The basic idea is that Congress can offer the state governments federal money in exchange for compliance with federal laws. State governments are not obligated to take the money, but many do. According to calculations from the Pew Charitable Trusts, federal grants as a share of state government revenues increased from 26 percent in 1967 to 32 percent in 2017.  Thirty-six states had shares of 30 percent or more in 2017. The relationship is not always coercive: the federal and state governments often cooperate in funding projects wanted by both levels of government. To learn more, including some pros and cons of the current system, see Part 3 of our short course on federalism.

FOR REFLECTION: How have these changes altered the stakes of winning and losing? How do you think these changes might impact the degree of polarization between strong supporters of the two main political parties?

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[i] Naturalization is the legal process of granting citizenship to a non-citizen.

[ii] The language in this part of the Constitution is confusing to modern readers. One interpretation of this clause is that the Letters of Marque and Reprisal Clause gave Congress only the power to license private vessels to make captures while the Captures Clause gave Congress the power to determine what property was subject to capture by both public and private forces. See Wuerth, I. (2009). The Captures Clause.

[iii] Habeas Corpus Law says people cannot be detained without first being brought before a court to establish whether or not it is legal to hold them in detention.

[iv] Gibbons v. Ogden, 22 U.S. 1 (1824); Swift and Company v. United States, 196 U.S. 375 (1905); NLRB v. Jones & Laughlin Steel Corp, 301 U.S. 1 (1937); United States v. Darby, 312 U.S. 100 (1941); Wickard v. Filburn, 317 U.S. 111 (1942)

Lesson 4. How Can Citizens Influence What Congress Does?

In this section, you will learn several ways you can impact what Congress does. These include voting, running for office, supporting a political party, sharing your views with your representative or senator, supporting an interest group, and organizing non-violent campaigns.

You should monitor your elected officials in Congress: Before you take any action, you will want to be well-informed about what is going on in Congress and what your representative and senators are doing. We offer a few ideas about how you might do this.

• Follow the news: The media can connect people to their government. The media is how most of us learn about candidates, government activity, issues, abuses of power, and occasional good results. Be wary, though, of the distinction between news (just the facts), analysis, opinions, disinformation (fake news), and fear-mongering.
• AllSides.com shows each news story from conservative, progressive, and neutral perspectives.
• Media Bias / Fact Check is useful in checking for bias.
• Be alert to manipulation: Partisan media have been a part of political campaigns from the very beginning of our Republic. The same is true of fake news, disinformation, and fear-mongering. See this link for an informative account from the Smithsonian Institution of some of the press battles from the framer’s times.
• There are steps you can take to detect disinformation. Do not rely on a small number of like-minded news sources. Taking in a wider range of people and perspectives will decrease the chances you will fall victim to hoaxes or false rumors. At the same time, be skeptical of your sources. Many sources use misleading or sensationalized headlines to get your attention and stir your emotions, seeking to distract you from reality and its complexities. Use your head. Sometimes even just a little logic can expose manipulation and falsehoods.
• You can find many tools to help detect online disinformation. Use any search engine and search on disinformation detection tools.
• We offer some coping tips in our short course on fear-mongering.
• Monitor directly: Only a few politicians catch the media’s attention, mainstream or otherwise. Even so, there are some easy ways you can keep track of your representative and senators.
• The easiest option is to sign up for the monthly newsletters from your representative and senators. They will put a shine on their achievements, and they will be partisan.
• If you want something more neutral, one of the easiest options is GovTrack.us. Unlike much of today’s media, it does not take sides. You can see what bills your representative and senators sponsored, which committees they served on, and how they voted. You can also track specific legislation that interests you.
  • VoteSmart is another similar service.

You can vote: Your vote is one of the most important, tangible ways to influence Congress and all three levels of government. Your vote is your power to hold your elected officials accountable. Poor performers can be replaced by someone promising better when enough people vote the same way. You have a chance to vote on members of the House in primary and regular elections every two years, while senators may seek reelection on rotating six-year schedules.

FOR REFLECTION: One of the benefits of representative democracy over autocracy is its potential to allow for competition for the best problem-solving policies.
At the time the Constitution was written, there were no political parties, so that competition was expected to occur between individual candidates, each putting their best ideas forward through the press and explaining why the other candidates (if not their ideas) were no good. Political parties formed almost immediately as people argued about the ratification of the Constitution. See a history of political parties by Wikipedia here.
How would you weigh the pros and cons of party loyalty relative to looking at each candidate and their ideas individually?

You can run for office: The Constitution sets three qualifications for service in the House: a person must be at least 25 years old, a United States citizen for at least seven years, and a resident of the state they represent. To serve in the U.S. Senate, a person must be at least 30, a U.S. citizen for at least nine years, and a resident of the state to be represented. There is no religious test, but you must be willing to pledge an oath to support the Constitution (Article VI). Most states have similar requirements.

Oath of Office: I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

You can support a political party: Political parties exist to help promote candidates and policies that are preferred by their factions. If a political party has policy ideas you like, you can support that party by voting for its candidates and by persuading others to vote the same way. You can also donate your time as a volunteer.

A small fraction of U.S. citizens also contribute money to various candidates, political action committees, and parties. The topic of campaign finance, its impact, and its fairness is as contentious today as it was at the turn of the 20^th century. See this link from Open Secrets for a timeline of money in politics.

You can share your views:  Every representative and senator has a website with an option for you to send them your views on what is important and how you wish they would vote. This option often earns no more than a canned response. You can often do better by placing a telephone call to their office and asking for a meeting with one or more of the staff. Either way, their staffs do keep track of how many people are pushing for certain topics. Similarly, they also have a presence on most major social media platforms where you can send more feedback. They do pay attention – ignoring major trends from their district or state may result in a lost election.

You can support an interest group: Interest groups organize people who share a common interest or policy and participate in lobbying to pass laws. These groups can be very effective when well organized with competent staff. You can contribute money or your time. You can see an extensive, if not exhaustive, list of such groups here: https://justfacts.votesmart.org/interest-groups

You can plan or participate in non-violent marches and protests: Sometimes, the methods above do not get results, often when a minority within the larger population of voters is asking for something expensive or difficult. Examples include workers in certain industries like coal mining, people of color, indigenous people, and people in the LGBTQ community. Non-violent protest is an alternative that is protected by the First Amendment. It is a public way to show support or lack of support for a government policy or action. It is a visual way to place pressure on the government. It does not always work, and it requires sustained effort. Two examples are highlighted in the boxes below.

The Bonus Army Marchers

Many WWI veterans had been out of work since the beginning of the Great Depression. Many of these veterans had been awarded bonuses in the form of certificates they could not redeem until 1945. They organized a march on the nation’s capitol in 1932, 43,000 strong, hoping to convince Congress to pay them early. It did not go well at first. President Hoover ordered the Army to clear them out. A second, smaller Bonus March took place in 1933. This was defused by an offer of jobs with the Civilian Conservation Corps, which most of the group accepted. Support for the Bonus Army cause within Congress gradually grew, however, so that, by 1936, Congress agreed to pay the veterans their bonus nine years early, even overriding President Roosevelt’s veto to do so. See this article from Wikipedia.

The Civil Rights Marchers

Many states had long been discriminatory against people of color, upholding the Constitution and its amendments only for white people. Segregation was widespread, and mistreatment could reach extreme levels: lynchings were common in the late 1800s through the early 1900s. The full history of the civil rights movement that came out of this discrimination is far too detailed to summarize here accurately. This timeline from History.com offers an overview. By the 1950s and 1960s, however, protests, sit-ins, boycotts, and marches were becoming much more frequent. Perhaps the most famous of the civil rights-era demonstrations was the March on Washington for Jobs and Freedom, held in August 1963, on the one-hundredth anniversary of Abraham Lincoln’s Emancipation Proclamation. Approximately 250,000 people participated. Congress followed up with the Civil Rights Act (1964) and the Voting Rights Act (1965). These successes were hard won, as people endured abuse and violence in reaction to their protests and marches in state after state.

Congratulations!

You have reached the end of this short introduction to Congress.

By now, you should be able to:

• Understand why we need a Congress
• Explain how worries about centralized power and majority factions shaped the Congress
• List Congress’s powers and its limits
• Explain two ways Congressional powers have changed over time
• List several ways you can have a productive impact on Congress

Do you want to read more deeply about Congress? We recommend the following books:

• The Anti-Federalist Papers

• The Constitution

• The Federalist Papers

• Smith, S., Roberts, J. and Vander Wielan, R. (2021). The American Congress. Cambridge University Press.

• Wallach, P. (2023). Why Congress. Oxford University Press.

Do you want to learn more about other aspects of the U.S. system of government? Check out our offerings here.

References

American Bar Association. (n.d.). Landmark United States Supreme Court Cases. Retrieved September 14, 2022, from https://www.americanbar.org/groups/public_education /programs/constitution_day/landmark-cases/

Avalon Project (n.d.) The Federalist Papers.
https://avalon.law.yale.edu/subject_menus/fed.asp

Congressional Budget Office (n.d.). https://www.cbo.gov/topics/budget

Congressional Research Service. (2021). Congressional oversight manual. Report No. 30240. From https://sgp.fas.org/crs/misc/RL30240.pdf

Congressional Research Service. (2018). Congress’s power over courts: Jurisdiction stripping and the Rule of Klein. Report No. R44967.  From

Click to access R44967.pdf

Cornell Law School. (n.d.). Commerce clause. Legal Information Institute. Retrieved August 4, 2022, from https://www.law.cornell.edu/wex/commerce_clause#:~:text=The%20Commerce%20Clause%20refers%20to,and%20with%20the%20Indian%20tribes.

​​Cornell Law School. (n.d.). The necessary and proper clause: Overview. Legal Information Institute. Retrieved August 4, 2022, from https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-18/the-necessary-and-proper-clause-overview

Gallup. (2022, August 4). Confidence in institutions. Gallup.com. Retrieved August 4, 2022, from https://news.gallup.com/poll/1597/confidence-institutions.aspx

History.com. Various articles.

Justia. (n.d.). Congressional investigations. From https://law.justia.com/constitution/us/article-1/05-congressional-investigations.html

Library of Congress. (n.d.).Constitution Annotated. From https://constitution.congress.gov/browse/article-1/

Library of Congress. (n.d.). Enumerated, implied, resulting, and inherent Powers. Fromhttps://constitution.congress.gov/browse/essay/artI-S1-3-3/ALDE_00013292/#essay-16

Library of Congress. (n.d.). Religion and the Founding of the American Republic. From https://www.loc.gov/exhibits/religion/rel01.html

OpenSecrets (n.d.). Money in Politics Timeline. https://www.opensecrets.org/resources/learn/timeline

National Archives. https://www.archives.gov/founding-docs/constitution-transcript

National Constitution Center. https://constitutioncenter.org/the-constitution

National Constitution Center. (n.d.). Supreme Court Case Library. Retrieved September 14, 2022, from https://constitutioncenter.org/the-constitution/supreme-court-case-library/south-dakota-v-dole

Pew Charitable Trusts (2018). Federal Share of State Revenue Rises for Third Year.
https://www.pewtrusts.org/en/research-and-analysis/articles/2018/07/24/federal-share-of-state-revenue-rises-for-third-year

U.S. Courts. (n.d.). Separation of powers in action – U.S. v. Alvarez. Retrieved September 14, 2022, from https://www.uscourts.gov/educational-resources/educational-activities/separation-powers-action-us-v-alvarez

U.S. Courts. (2019). Now Cherished, Bill of Rights Spent a Century in Obscurity. From https://www.uscourts.gov/news/2019/12/12/now-cherished-bill-rights-spent-century-obscurity

U.S. History.org. From https://www.ushistory.org/us/index.asp

U.S. House of Representatives: History, Art & Archives. (n.d.). Proportional Representation. Retrieved September 14, 2022, from https://history.house.gov/Institution/Origins-Development/Proportional-Representation/#:~:text=The%20Constitution%20provides%20for%20proportional,to%20the%20constitutionally%20mandated%20Census

VoteSmart.com (n.d.). National Interest Groups. https://justfacts.votesmart.org/interest-groups

Wikipedia. Various articles. https://en.wikipedia.org Wuerth, I. (2009). The captures clause. University of Chicago Law Review, 76, 1683.