Article 1 – The Legislative Branch

This section deals with setting up the legislative branch.

I think we can see from the order of the Articles the importance the Founders placed on the particular pieces of the federal government. I don't find this stated anywhere but the order does follow their pattern of placing We the People and the States in a place of utmost importance, first. As you will see here, The Congress is supposed to be where the people and the States have their strongest direct support and influence. Next would be the executive and then the judicial which is meant only to rule on very specific areas. It is logical for the Founders to order it in this manner based on their thoughts and ideas of government at the time. It's very evident to me, the Congress is to be the focal point of the government, NOT the executive branch, as is now the case.

Let's now see how the Founders intended things to work.

Section 1 states:

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

That's a very definitive statement. In other words, ONLY the legislative branch is granted legislative powers, not the executive or the judicial branches.

Section 2 deals with setting up the House of Representatives and is pretty straight-forward.

[1] The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

[2] No Person shall be a Representative who shall not have attained to the Age of twenty-five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

[3] [Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons,  including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.] (Note: Part in brackets changed by Section 2 of the Fourteenth Amendment.) The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

[4] When vacancies happen in the Representation from any state, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

[5] The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section 3 deals with setting up the Senate.

Section 3 [1] originally stated:

“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

The 17th Amendment changed the way Senators were elected. Rather than being elected by each State legislature they are now elected by the State's citizens.

This is significant and goes against what the Founders intended. There were very definite reasons for them setting the Senate up the way they did.

James Madison explains why this is important in Federalist 45:

“The State governments may be regarded as constituent and essential parts of the federal government …Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. The Senate will be elected absolutely and exclusively by the State legislatures. …Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them…”

Their purpose was to establish the power of the States over the federal government. With the House and Senate setup in this manner the people had their representation in the House and the State had their representation through the Senate. Therefore both of the parties that setup the Constitution had direct control of the federal government.

When the 17th Amendment was enacted it therefore took away a very strong power of the States to control the federal government monster. The 17th Amendment should be repealed and that power return to the States where it belongs for the reason stated by Madison and others.

Sections 4-7 deal with the organization of Congress. It is good to read to understand how things are supposed to work.

[1] The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

[2] The Congress shall assemble at least once in every Year, and such Meeting shall be [on the first Monday in December,] (Note: Changed by section 2 of the Twentieth Amendment.) unless they shall by Law appoint a different Day.

Section 5

[1] Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

[2] Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.

[3] 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.

[4] Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section 6

[1] The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

[2] No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section 7

[1] All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

[2] Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

[3] Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section 8 deals with the powers GRANTED to Congress. Did you catch that? The Constitution directly states the powers that are granted to the Congress.

The following are the powers given to the Congress in the original Constitution:

[1] The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

[2] To borrow money on the credit of the United States;

[3] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

[4] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

[5] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

[6] To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

[7] To establish Post Offices and post Roads;

[8] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

[9] To constitute Tribunals inferior to the supreme Court;

[10] To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

[11] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

[12] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

[13] To provide and maintain a Navy;

[14] To make Rules for the Government and Regulation of the land and naval Forces;

[15] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

[16] To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

[17] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; —And

[18] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The 13th, 14th, 15th, 16th, 19th, 23rd,  24th, & 26th Amendments delegated additional powers to Congress over the Country at Large respecting certain civil rights & certain voting rights, the public debt, lawfully incurred, income tax, successions to vacated offices, dates of assembly, and appointment of representatives from the D.C.

The powers WE THE PEOPLE delegated to Congress over us fall into four categories:

International relations, commerce and war

Control immigration by restricting who may come to these United States, and establish a uniform rule of naturalization of new citizens

Domestically, to establish a uniform commercial system: weights and measures, patents and copyrights, a monetary system based on gold & silver, bankruptcy law, a limited power over interstate commerce, and mail delivery

And in some of the Amendments, to protect certain civil and certain voting rights

As you can see the list is not very long and it IS very restricting and for very good reason.

Can you think of anything that Congress currently does that is NOT in that list? That's a pretty easy exercise isn't it. When you look at this list and then at what Congress currently does it's very easy to understand why our freedoms and liberties are now so restricted and endangered.

Congress has no power over our health care, to bail out banks, education, housing, etc, etc, etc. So how do they get away with doing what they do? Our IGNORANCE!

If you don't know what their limitations are how do you know you should stop them. This information should be taught in every middle school and high school in the nation but it is not. You now can see how important it is to know these things intimately and we're just getting started.

There are several different arguments that are made to justify Congress using unconstitutional powers, we'll discuss the main ones now.

Many use the “general welfare” clause in the preamble to justify what Congress does but that is incorrect. To understand what the founders meant in the Preamble and Article 1, Section 8, Clause 1 by the term welfare you we must look at the definition in Websters Dictionary of 1828:

“Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government”

The current understood meaning of welfare is:

“Public relief as in on welfare. Dependent on public relief”

This shows how the Constitution can be perverted if you do not attempt to understand the true meaning of the Founders words as they meant them when written.

An even stronger explanation is made by James Madison in Federalist 41 in the last four paragraphs. He points out that Article 1, Section 8, Clause 1 uses “general terms” and then immediately following the “general terms” are the “enumeration of particular powers” which “explain and qualify,” by a “recital of particulars,” the general terms.

Next is the “commerce clause,” Article 1, Section 8, Clause 3. In Federalist 22 the fourth paragraph Hamilton states:

“The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy...”

Madison in Federalist 42, paragraphs eleven and twelve states:

“The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.

The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible. This is not the only case in which the articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain.“

Both Hamilton and Madison explain the meaning of the “commerce clause” in these two papers. Nothing is mentioned about the Congress being able to pass laws controlling individual commerce. The “commerce clause” is merely meant to prevent States from applying tariffs and levies to other States. The current incorrect interpretation was started during the Franklin D. Roosevelt “New Deal” administration because it suited their purpose and they were allowed to get away with it.

The next argument is the “necessary and proper clause”, Article 1, Section 8, Clause 18. In Federalist 29, fourth paragraph Hamilton states:

“It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted (sic) with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it.”

James Madison also states in Federalist 44 his agreement with Hamilton:

“...As the powers delegated under the new system are more extensive, the government which is to administer it would find itself still more distressed with the alternative of betraying the public interests by doing nothing, or of violating the Constitution by exercising powers indispensably necessary and proper, but, at the same time, not EXPRESSLY granted...”

So this clause merely means that Congress can pass all laws needed to fulfill it's granted, limited powers but nothing more. It does not give Congress any additional powers.

It is VERY evident that Congress really IS restricted to the powers enumerated in the Constitution.

Our Founders fully understood that “ form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity...” a limited and restricted federal government was required.

In Section 9 powers expressly forbidden to Congress are listed, they are:

[1] The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

[2] The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

[3] No Bill of Attainder or ex post facto Law shall be passed.

[4] No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

[5] No Tax or Duty shall be laid on Articles exported from any State.

[6] No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

[7] No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

[8] No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section 10 Deals with some restrictions to the States pertaining to Congress.

[1] No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

[2] No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

[3] No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.