Congress

Much like an accordion, Congress’s power has expanded and contracted over the last two hundred years

Dear Readers,

Congress—its history, power, and function—is another gargantuan topic. Despite a Constitutional mandate, nearly every aspect of Congressional power has been argued in front of the Supreme Court of the U.S. (SCOTUS). The first major case on Congressional power was decided in 1819 (McCulloch v. Maryland), and the issue continues to be litigated this today (e.g., Trump v. Mazars from 2020). Much like an accordion, Congress’s power has expanded and contracted over the last two hundred years, in large part based on the philosophies of members of Congress and Supreme Court justices.

To effectively address the immensity of Congress’s role in criminal law and the criminal legal system, I split this topic into two (possibly three) newsletters. Today’s newsletter is an overview of what Congress is and some key organizing ideas the drafters of the Constitution had about Congress’s role and popular democracy. Upcoming newsletters discuss Congress’s enumerated and implied powers, and more specifically its functions related to criminal law and federal court procedures.

Quick Review: Congress

Congress is the legislative branch of the federal government and consists of the Senate and the House of Representatives. Among other powers, the legislative branch makes all laws and has “the ‘power of the purse,’ which is the ability to tax and spend public money for the national government.”1

Congress was established by Article I, Section 1 of the Constitution. Articles 2 through 7 address Congressional representation (including the mandate for the U.S. Census), elections, governance, and processes. Article I, Section 8 enumerates the eighteen powers of Congress. Section 9, along with the Bill of Rights, serve to limit the powers of Congress. To learn more about Article 1, click here.

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The Senate

The Senate has 100 members: Two senators per state, with each serving staggered six-year terms. When the Framers drafted the Constitution, state legislatures selected the two senators who represented the state in the national delegation. Senators “were subject to instruction and recall if they did not do what their [state] legislatures told them to do.”2 State selection and longer terms were implemented to “ensur[e] that Senators were not subject to direct pressure or retaliation from popular majorities (i.e. “the people”).

In 1913, the Seventeenth Amendment was ratified, declaring Senators are to be “elected by the people.”3 Many writers agree that the Seventeenth Amendment “fundamentally altered the design of the original structure of the government,”4 but there is not much agreement as to why the states ratified the amendment. (I have included some resources below if you want to delve deeper).

Since 1913, Senators are elected by statewide popular vote.

Senators have a few different roles in governance:

  1. Propose, author, and vote on federal legislation.

  2. Confirm or reject Presidential appointments, such as SCOTUS nominees, federal judges and “nearly 1,200 executive-level jobs.” (More examples in this article).

  3. Sign and ratify treaties, requiring two-thirds vote. (For more about treaties, read this commentary by Karla E. General, an attorney at the Indian Law Resource Center).

  4. Conduct oversight of all branches of the federal government. (Check out the 2021 Congressional Oversight Manual, published by the Congressional Research Service).

  5. Hold trials and make determinations to convict an official impeached by the House by a two-thirds super-majority vote. (Senate procedures are here).

The House of Representatives

The House of Representatives currently has 435 members. Each member of the House represents a specific district within their state. “The number of Representatives allotted each state is determined by population,” not number of voters.5 This number is determined every ten years following a census count, as delineated in Article 1, Section 2 of the Constitution.6 (More on this below).

The primary duties of the House are:

  1. Propose, author, and vote on federal legislation.

  2. Initiate all tax and spending bills. (For more on the Power of the Purse, take a look at the House website).

  3. Initiate impeachment process and pass resolution of “Articles of Impeachment” against federal officials that are then given to the Senate for trial. (You can learn more here).

Two pivotal ideas that influenced the Framers

The Federalist Papers and many archival documents from the 1787 Constitutional Convention highlight the breadth of ideas the delegates considered when drafting the Constitution. While many of these ideas and philosophies are worth discussion, I focus on federalism and bicameralism. They influence the interplay between the federal and state governments and the ways federal laws are passed, creating a profound impact on criminal law making and the criminal legal system.

Federalism

What is federalism?

Federalism is a system of government in which the same territory is controlled by two levels of government. Generally, an overarching national government is responsible for broader governance of larger territorial areas, while the smaller subdivisions, states, and cities govern the issues of local concern.7

Why does federalism and its interpretation matter? As journalist Chris Maisano argues:

[F]ederalism can seem like a boring and arcane topic to talk about. But we ignore or downplay it at our peril. Federalism . . . shaped the terrain of political conflict, generated powerful path dependencies that limit the scope of government action, and structured the sequence of events in the development of US public policy.8

At the macro level, scholars and policymakers have discussed federalism as a tool for/against issues of national unity, states-as-laboratories, and participatory local governments.9 But, “[f]ederalism . . . [also] affects the prosperity, security, and many everyday choices of each person living in the United States”10 because state laws still regulate and manage much of our daily lives.11 Some examples of states’ powers include law enforcement, criminal lawmaking, education, and voting rights. Finally, “states’ rights” and small federal government arguments have long been invoked by state-level politicians and policymakers in order to violently and legally oppress and suppress Black and brown Americans, as well as dissident activists, without federal intervention.12

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How did American federalism come to pass? Between 1776 and 1777, a committee of representatives from the thirteen states drafted The Articles of Confederation (TAC), creating “a weak central government [and] leaving most of the power with the state governments.”13 TAC was ratified by all thirteen states by 1791.14

Over the next decade, there was increasing debate and pressure to formulate a stronger union between the states in large part for self-defense (from both internal and external groups) and economic purposes.15 (For more about the populist uprisings occurring in the late-1700s, check out the work of Garrett Epps in The Atlantic. For more about the uprisings of enslaved people, see Henry Louis Gates’s piece for The Root and PBS.)

What the union should look like was up for debate. Some delegates argued that the U.S. should have a unitary system of government, meaning that there would be one centralized federal government and no local government. Others argued for a federalist system, where the states retain control over local matters. The federalists won.

How is federalism interpreted? With the adoption of federalism, the issue of “[s]tate sovereignty lies at the heart of perhaps our oldest constitutional conundrum,”16 and continues to be hotly debated today. How much power does the federal government have over the states? How much power and autonomy should the states retain? Are the states sovereign entities or do the people hold supreme sovereignty?

Sovereignty is a complex idea with many different variations. Merriam-Webster defines sovereignty as:

1a: supreme power especially over a body politic (a group of persons politically organized under a single governmental authority)

b: freedom from external control : AUTONOMY

2: one that is sovereign especially: an autonomous state17

Many have argued that the Framers intended to create a “popular sovereignty.” Popular sovereignty exists when the “government [is] based on [the] consent of the people . . . The government’s source of authority is the people, and its power is not legitimate if it disregards the will of the people.”18 The popular sovereignty interpretation means, in effect, that “the People delegate their sovereignty to the states . . . so that states can serve critical functions on their behalf.”19 This philosophy allows for a balance of power between the states and the federal government.

In the alternative, many others have interpreted state sovereignty to mean that states are “more like nations or persons; they have constitutional rights to such things as autonomy, equality, and due process.”20 This idea is predicated on the idea that the Constitution is intended to severely limit the size and scope of the federal government, and give significant power to the states.21

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Raging debates about federalism and the balance of power between federal and state governments often revolve around the criminal legal system. As Professor Rachel E. Barkow explains:

Criminal law enforcement in the United States is multi-jurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. The Supreme Court has wrestled repeatedly with the issue of how the Constitution allocates criminal power between the federal government and the states.22

In sum, how federalism is interpreted and implemented has a profound impact on criminal law and the criminal legal system, as well as the individuals and communities targeted by its practices. Federalism is a topic “we ignore or downplay [] at our peril.”23

Bicameralism (and Presentment)

What is bicameralism and presentment? [B]icameralism (bi, "two" + camera, "chamber") is the practice of having two legislative or parliamentary chambers.”24 In the U.S., those chambers are the Senate and the House of Representatives.

Presentment, as written in Article 1, Section 7, Clause 3 of the Constitution, “requires all laws to be presented to the President for his signature or veto.”25

Here’s how these two ideas, located in Article I, Section 7, Clauses 2 and 3 of the Constitution, fit together:

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a law, be presented to the President of the United States” who may veto the bill; a vetoed bill can become law only if two-thirds of those voting in both chambers of Congress approve the bill, notwithstanding the President's objections.26

Why bicameralism? Bicameralism (and presentment), as outlined in the Constitution, is often described as a tool to ensure that no branch of the federal government had too much unchecked power.27 I posit that this is only part of the story.

Until 1912 and the ratification of the Seventeenth Amendment, members of the Senate were selected by state legislatures, not elected by popular vote. Each state, regardless of size, had two Senators. Representatives, however, were elected by popular vote and the number of Representatives each state was allocated depended on its population. By giving equal representation to every state in the Senate, smaller and less populated states retained some power. The Senate served as a ballast for the much-larger, population-based House of Representatives.

Historical evidence indicates that the Framers were skeptical, perhaps even fearful of the idea of a popular democracy, “where the people might be ‘stimulated by some irregular passion,’ or where they might be ‘misled by the artful misrepresentations of interested men.’”28 (Both quotes are attributed to James Madison). With a Senate where the members are selected by state legislatures, however, Senators would be impervious, or at least less vulnerable to populist ideals.

With smaller districts and short terms, the House of Representatives was expected to be responsive to We the People. But hasty popular measures could be ameliorated or killed in the Senate, whose members served for longer terms and were selected by the state legislatures until enactment of the Seventeenth Amendment.29

George Washington is credited with saying that “we pour our legislation into the senatorial saucer to cool it.”30 In other words, the Senate served to temper any popular majority ardor that may find its voice in the House.

Bicameralism, then, was likely created to serve as a check against “We the People” and popular democracy. How do we see this playing out today? Does this resonate with you? What you are observing?

A brief deviation: The U.S. Census

In 2020, the nation roiled with debates and legal battles about how the Census should be conducted and who should be counted. Representation, redistricting, taxation, (dis)enfranchisement, and lots of federal funding were/are central to these debates. At the heart of the matter is (and always has been) the question: Who deserves to be counted and acknowledged by our Nation? Though the recent arguments contained the ardor and rancor of newness, they have been critical to this country’s identity since its inception. (See the resources below to learn more).

The U.S. Census is mandated by Article I, Section 2 of the Constitution as a tool to determine apportionment of taxation and representatives in Congress.31 It is also used to used to allocate more than $1.5 trillion annually for federally funded programs.”32

“‘Apportionment’ is the process of dividing the 435 memberships, or seats, in the House of Representatives among the 50 states.”33

Every ten years, the Census counts every person living in the U.S. and the five U.S. territories (American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands).34 It has been conducted every decade since 1790; who we categorize as “a person” to be counted has been a source of impassioned debate for just as long.

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In 1929, Congress restricted the number of Representatives to 435, and later developed the “method of equal proportions.” However, Congress could alter both the number of Reps and the computation formula whenever it desires to do so. (For more on this, check out “Computing Apportionment” or “How Apportionment is Calculated”).

Because the number of Representatives is dependent on population, it has fluctuated throughout history as the U.S. admitted new states and immigrants, shifted its borders, and granted citizenship to those already living within its ever-changing borders.

For example, the population of the U.S. grew from 3.9 million people in 1790 to 63 million people in 1890.35 When looking at this difference, there is no question that the growth was due to new states and immigration. Another factor, not to be ignored, is that the Constitution originally counted enslaved people of African descent as three-fifths of a person.36 The Fourteenth Amendment, ratified in 1868, repealed the three-fifths clause, and granted citizenship to Black Americans. This massive policy and human rights shift also changed how Black Americans were counted in the Census—as a whole person.

When the Census began, Indigenous people were excluded from the apportionment formula, unless they had renounced tribal allegiance and were paying taxes.37 In 1924, Congress issued Native Americans certificates of citizenship,38 though many were still denied voting rights.39 It was not until 1940 that the Attorney General of the U.S. determined “there were no longer any [Native Americans] who should be classed as ‘not taxed.’”40 This remains a complicated issue for Indigenous peoples, but the granting of citizenship status changed the Census count nonetheless.41

In Conclusion

As I stated in the beginning, Congress—its history, power, and function—is a gargantuan topic. Today’s newsletter laid the foundation for a more specific conversation about Congressional power and its relationship to criminal law and the criminal legal system. More to come!

Now, please join me, dear reader, and this community to delve deeper, ask questions, respectfully disagree, and share ideas in the comments section. I hope this is the start of many conversations over coffee, dinner tables, and online!

Lastly, I welcome your feedback. These newsletters are to demystify and inform. Please let me know what is or is not working so I can make this into the most useful resource I can. Also, please continue to spread the word!

Respectfully,

Amy

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More Resources on the Census:

Jeffrey S. Passel and D’Vera Cohn, “How removing unauthorized immigrants from census statistics could affect House reapportionment,” Pew Research Center, located at: https://www.pewresearch.org/fact-tank/2020/07/24/how-removing-unauthorized-immigrants-from-census-statistics-could-affect-house-reapportionment/

Margo J. Anderson, "The American Census: A Social History, 2nd edition, p.4, located at: https://www.google.com/books/edition/The_American_Census/XaxJCgAAQBAJ?hl=en&gbpv=1&dq=the+american+census+a+social+history&printsec=frontcover

“Proportional Representation,” History, Art & Archives, U.S. House of Representatives, located at: https://history.house.gov/Institution/Origins-Development/Proportional-Representation/

U.S. Census Bureau, “Congressional Apportionment: Historical Perspective,” located at: https://www.census.gov/topics/public-sector/congressional-apportionment/about/historical-perspective.html

“U.S. Census Connections: A Resource Guide,” Library of Congress, located at: https://guides.loc.gov/census-connections/introduction

Hansi Lo Wang, “What You Need To Know About The 2020 Census,” NPR, located at: https://www.npr.org/2019/03/31/707899218/what-you-need-to-know-about-the-2020-census

Hansi Lo Wang, “The History Of The Census And House Of Representatives” NPR, located at: https://www.npr.org/2021/04/19/988659310/the-history-of-the-census-and-house-of-representatives

Andrew Chatzky and Amelia Cheatham, “Why Does the Census Matter?,” Council on Foreign Relations, located at: https://www.cfr.org/backgrounder/why-does-census-matter

Resources on the 17th Amendment

“The Seventeenth Amendment,” PBS, located at: https://www.pbs.org/video/17th-amendment-x1bfyy/

David N. Schleicher and Todd J. Zywicki, “The Seventeenth Amendment,” located at: https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xvii/interps/147

Panel at the National Constitution Center: “Divided Power: The Re-Emergence of Federalism and the 17th Amendment,” located at: https://constitutioncenter.org/interactive-constitution/town-hall-video/divided-power-the-re-emergence-of-federalism-and-the-17th-amendment

Find your Representative: https://www.house.gov/representatives/find-your-representative

Find your Senator: https://www.senate.gov/senators/senators-contact.htm

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1

History, Art, Archives: The U.S. House of Representatives, “The Power of the Purse,” located at: https://history.house.gov/Institution/Origins-Development/Power-of-the-Purse/

2

Steven G. Calabresi and Michael J. Gerhardt, “Common Interpretation: Article 1, Section 3,” National Constitution Center, located at: https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/765

3

“Seventeenth Amendment,” Constitution Annotated, located at: https://constitution.congress.gov/browse/essay/amdt17_1/

Margo Anderson, The American Census: A Social History, p. 13, located at: https://www.google.com/books/edition/The_American_Census/XaxJCgAAQBAJ?hl=en&gbpv=1&dq=the+american+census+a+social+history&printsec=frontcover. Taxation was also affected by this formula.

4

David Schleicher, “The Seventeenth Amendment and Federalism in an Age of National Political Parties,” Hastings Law Journal, Vol. 65 at 1046. Located at: https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5958&context=fss_papers

6

“Computing Apportionment,” U.S. Census Bureau, located at: https://www.census.gov/topics/public-sector/congressional-apportionment/about/computing.html

7

“Federalism,” Legal Information Institute, located at: https://www.law.cornell.edu/wex/federalism

8

Chris Maisano, “Why Should We Care About American Federalism?", Jacobin Magazine, located at: https://jacobinmag.com/2020/09/divided-states-review-united-states-federalism

9

Pietro Nivola, “Why Federalism Matters,” Brookings, located at: https://www.brookings.edu/research/why-federalism-matters/

Justice Thomas’s remarks at Drake Law School, located at: https://lawreviewdrake.files.wordpress.com/2016/09/thomas.pdf.

10

David Brian Robertson, Federalism and the Making of America, located at: https://books.google.com/books?id=mCDGBQAAQBAJ&printsec=frontcover#v=onepage&q&f=false

11

Ibid. Robertson goes on to list out all the ways states manage and regulate our lives: education, death, marriage, crime and punishment, commercial law.

12

John Valery White, “Federalism and the Challenge for Human and Civil Rights,” speech at Conference on Global Sub-National Constitutionalism, located at: http://statecon.camden.rutgers.edu/sites/statecon/files/subpapers/white.pdf

See also the interview in Jacobin with Aziz Rana, “It Would Be Great if the United States Were Actually a Democracy,” located at: https://jacobinmag.com/2021/02/us-constitution-interview-aziz-rana. Rana states:

The central eighteenth-century architects of the federal constitution were deeply suspicious of mass democracy. They therefore created a legal-political framework that placed massive roadblocks in the path of ordinary people using the vote to exercise majority rule. From the founding to the present, the result has been a system that fractures the power of the vote and makes it very difficult for the most marginalized within society to have their voices heard, let alone their needs met. At the same time, due to this system’s veto points and overall fragmentation, the larger order is especially conducive to capture by empowered elites — particularly corporations and forces of white supremacy.

13

“The Articles of Confederation",” Library of Congress, located at: https://www.loc.gov/rr/program//bib/ourdocs/articles.html

14

See the timeline on the Library of Congress’s website: https://www.loc.gov/rr/program//bib/ourdocs/articles.html

15

All of the above resources discuss these issues. Another good source: “The Continental Congress,” Thought Co., located at: https://www.thoughtco.com/continental-congress-5074199

16

Zick, Timothy, "Active Sovereignty" (2007). Faculty Publications. 95. at 542. https://scholarship.law.wm.edu/facpubs/95. Timothy Zick goes on to say, “On the one hand, when the People fashioned the Constitution, they created a Union rather than a confederation of states. On the other, as the Court has said, the states ‘entered the federal system with their sovereignty intact.’”

18

“Popular Sovereignty,” Annenberg Classroom, located at: https://www.annenbergclassroom.org/glossary_term/popular-sovereignty/. As noted in the previous newsletter, “the people” was not intended to include all persons, only male, Anglo landholders.

19

Zick, Timothy, "Active Sovereignty" (2007). Faculty Publications. 95. at 542. https://scholarship.law.wm.edu/facpubs/95.

20

Ibid at 541-42.

22

Rachel E. Barkow, “Federalism and Criminal Law: What the Feds Can Learn from the States,” Michigan Law Review, Vol. 109, Iss. 4, located at: https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1165&context=mlr

23

Chris Maisano, “Why Should We Care About American Federalism?", JacobinMagazine, located at: https://jacobinmag.com/2020/09/divided-states-review-united-states-federalism

25

Nicholas Bagley and Thomas A. Smith, “Common Interpretation: Article I, Section 7,” National Constitution Center, located at: https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/766.

27

Garrett Epps, “Constitutional Myth #2: The 'Purpose' of the Constitution Is to Limit Congress”, in The Atlantic. Located at: https://www.theatlantic.com/national/archive/2011/06/constitutional-myth-2-the-purpose-of-the-constitution-is-to-limit-congress/239374/.

28

George Thomas, “Madison and the Perils of Populism,” National Affairs, located at: https://www.nationalaffairs.com/publications/detail/madison-and-the-perils-of-populism

29

William N. Eskridge, Jr. and Neomi Rao, “Article 1, Section 1: General Principles," National Constitution Center, located at: https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/749

30

Steven G. Calabresi and Michael J. Gerhardt, “Common Interpretation: Article 1, Section 3,” National Constitution Center, located at: https://constitutioncenter.org/interactive-constitution/interpretation/article-i/clauses/765

31

“About Congressional Apportionment,” U.S. Census Bureau, located at: https://www.census.gov/topics/public-sector/congressional-apportionment/about.html

32

Andrew ChatzkyandAmelia Cheatham, “Why Does the Census Matter?,” Council on Foreign Relations, located at: https://www.cfr.org/backgrounder/why-does-census-matter

33

“About Congressional Apportionment,” U.S. Census Bureau, located at: https://www.census.gov/topics/public-sector/congressional-apportionment/about.html

36

Mark Sherman and Kimberlee Kruesi, “EXPLAINER: No evidence ‘3/5 compromise’ aimed to end slavery,AP, located at: https://apnews.com/article/electoral-college-slavery-election-2020-race-and-ethnicity-government-and-politics-0ef97970a86255bf89c897838fcdb335

37

Ibid.

38

“Document for June 2nd: "Act of June 2, 1924, ... which authorized the Secretary of the Interior to issue certificates of citizenship to Indians,” National Archives, located at: https://www.archives.gov/historical-docs/todays-doc/?dod-date=602

39

Jacob Wallace, “Census hasn’t always counted Native Americans. Now it tries.,” The Journal, located at: https://www.the-journal.com/articles/census-hasnt-always-counted-native-americans-now-it-tries/

40

U.S. Census Bureau, “Congressional Apportionment: Historical Perspective,” located at: https://www.census.gov/topics/public-sector/congressional-apportionment/about/historical-perspective.html

41

Jacob Wallace, “Census hasn’t always counted Native Americans. Now it tries.,” The Journal, located at: https://www.the-journal.com/articles/census-hasnt-always-counted-native-americans-now-it-tries/