Congressional Power: Article I and the Federalist Papers


washington dc, capital, america

We continue our exploration of Article I of the United States Constitution as it defines the roles of the Senate and the House of Representatives. We will rely on the Federalist Papers for commentary.

Written by Alexander Hamilton, James Madison, and John Jay, the Federalist Papers allow us to see what our Founders were thinking as they advocated for the proposed Constitution by writing letters to the newspaper in New York, the most populous state at the time.

Because the three authors all worked under the pen name “Publius,” it is sometimes unclear who wrote which letter; in this case historians have credited two possible authors.

To see the full text of the Federalist Papers, follow the link to guides.loc.gov.

Section 5: Powers and Duties of Congress

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. 

In Federalist Paper #53, Hamilton or Madison makes the point that self-regulation cuts down on mischief from outsiders wanting to influence each house of Congress:

Each house is, as it necessarily must be, the judge of the elections, qualifications, and returns of its members; and whatever improvements may be suggested by experience, for simplifying and accelerating the process in disputed cases, so great a portion of a year would unavoidably elapse, before an illegitimate member could be dispossessed of his seat, that the prospect of such an event would be little check to unfair and illicit means of obtaining a seat. 

In Federalist Paper #48, Madison explains the need for the three branches of the government to regulate themselves.

After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each, against the invasion of the others.

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

In Federalist Paper #62, Hamilton or Madison points out the advantage of two separate houses of Congress in dealing with possible mischief:

It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.

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.

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.

In Federalist Paper #39, Madison discusses the two houses of Congress as complementing each other:

The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people.

Having the two houses meeting at the same time, the Constitution keeps one house from usurping the other’s authority. They work together, or against each other, to maintain the tension between the majority of the people (House of Representatives) and the majority of the states (Senate).

Large states like California are kept from running over the will of small states like Rhode Island because they have equal votes in the Senate; but the more populous states do have a larger role in the House of Representatives.

Section 6: Rights and Disabilities of Members

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.

Congress members are given immunity from prosecution on their way to and from Congressional Sessions in order to keep them from being waylaid by the opposition and prevented from attending.

The Executive branch, which has the power to execute the law, is therefore prevented from interfering with the Legislature.

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.

As Hamilton said in Federalist Paper #76:

“The Constitution has provided some important guards against the danger of executive influence upon the legislative body.”

The Ineligibility Clause does not allow a member of Congress to hold another government office at the same time. Thus the President cannot sway a Congress member to do his bidding by promising an appointment.

Section 7: Legislative Process

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.

Madison, in Federalist Paper #58, stated:

The house of representatives can not only refuse, but they alone can propose the supplies requisite for the support of government. They in a word hold the purse… the most compleat and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.

In other words, the power of taxation belongs in the hands of the legislative body most closely aligned with the American populace. This is the Origination Clause.

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.

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.

In Federalist Paper #73, Hamilton explains the virtue of the President’s veto power: 

It not only serves as a shield to the Executive, but it furnishes an additional security against the enaction of improper laws. It establishes a salutary check upon the legislative body, calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.

To balance the veto, the House and the Senate can override it with a two thirds majority. Hamilton expresses his confidence in human nature:

It is to be hoped that it will not often happen that improper views will govern so large a proportion as two thirds of both branches of the legislature at the same time; and this, too, in spite of the counterposing weight of the Executive. 

Section 8: Powers of Congress

In Federalist Paper #41, Madison laid out the categories of regulation for which the Federal government is responsible:

  • 1. Security against foreign danger;
  • 2. Regulation of the intercourse with foreign nations;
  • 3. Maintenance of harmony and proper intercourse among the States;
  • 4. Certain miscellaneous objects of general utility;
  • 5. Restraint of the States from certain injurious acts;
  • 6. Provisions for giving due efficacy to all these powers.

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;

Madison did not envision the IRS as we have it today in Federalist Paper #45:

If the federal government is to have collectors of revenue, the State governments will have theirs also. And as those of the former will be principally on the seacoast, and not very numerous, whilst those of the latter will be spread over the face of the country, and will be very numerous, the advantage in this view also lies on the same side.

To borrow Money on the credit of the United States;

Madison spoke about borrowing in Federal Paper #41:

The power of levying and borrowing money, being the sinew of that which is to be exerted in the national defense, is properly thrown into the same class with it. 

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

Madison discussed this Commerce Clause in Federalist Paper #42

The defect of power in the existing Confederacy to regulate the commerce between its several members, is in the number of those which have been clearly pointed out by experience

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.

To establish a uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Madison addressed establishing uniformity for naturalization and bankruptcies in Federalist Paper #42:

In one State, residence for a short term confirms all the rights of citizenship: in another, qualifications of greater importance are required. …The new Constitution has accordingly, with great propriety, made provision against them… by authorizing the general government to establish a uniform rule of naturalization throughout the United States. 

The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question. 

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

Madison spoke about money in Federalist Paper #42:

It must be seen at once that the proposed uniformity in the VALUE of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States.

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

The punishment of counterfeiting the public securities, as well as the current coin, is submitted of course to that authority which is to secure the value of both. The regulation of weights and measures is transferred from the articles of Confederation, and is founded on like considerations with the preceding power of regulating coin.

To establish Post Offices and post Roads;To establish Post Offices and post Roads;

Madison covered post offices in Federal Paper #42:

The power of establishing post roads must, in every view, be a harmless power, and may, perhaps, by judicious management, become productive of great public conveniency.

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;

Madison explained copyrights in Federalist Paper #43:

The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.

To constitute Tribunals inferior to the supreme Court;

In Federalist Paper #81, Hamilton addressed the lesser courts:

The power of constituting inferior courts is evidently calculated to obviate the necessity of having recourse to the Supreme Court in every case of federal cognizance. It is intended to enable the national government to institute or AUTHORIZE, in each State or district of the United States, a tribunal competent to the determination of matters of national jurisdiction within its limits.

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

Madison addressed piracy in Federalist Paper #42:

The power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations, belongs with equal propriety to the general government.

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

Madison covered war powers in Federalist Paper #41:

Security against foreign danger is one of the primitive objects of civil society. It is an avowed and essential object of the American Union. The powers requisite for attaining it must be effectually confided to the federal councils.

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

If one nation maintains constantly a disciplined army, ready for the service of ambition or revenge, it obliges the most pacific nations who may be within the reach of its enterprises to take corresponding precautions.

To provide and maintain a Navy;

Hamilton advocated for a navy in Federalist Paper #11:

A navy of the United States, as it would embrace the resources of all, is an object far less remote than a navy of any single State or partial confederacy, which would only embrace the resources of a single part. 

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

 With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.

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

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;

Hamilton addressed the militia in Federalist Paper #29:

THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

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

Madison prepared for the establishment of Washington, D.C. in Federalist Paper #43

The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy

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.

Section 9: Powers Denied Congress

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.

This clause allows for the slave trade to end in the United States in 1808, as a compromise between those who wanted to abolish slavery and those who wanted it to continue indefinitely. As Madison said in Federalist Paper #42:

It were doubtless to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation.

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.

The writ of habeas corpus allows a prisoner the right to protest unlawful detention. In Federalist Paper #84, Hamilton explains:

The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains.

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

The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny. 

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

The Sixteenth Amendment added an income tax:

16th Amendment

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

In Federalist Paper #36, Hamilton discussed direct and indirect taxation:

Let it be recollected that the proportion of these taxes is not to be left to the discretion of the national legislature, but is to be determined by the numbers of each State, as described in the second section of the first article. An actual census or enumeration of the people must furnish the rule, a circumstance which effectually shuts the door to partiality or oppression.

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

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.

Hamilton, in Federalist Paper #11, advocates for allowing free trade between the states with no import duties:

A unity of commercial, as well as political, interests, can only result from a unity of government.

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.

In Federalist Paper #30, Hamilton examines the balance between too little revenue and too much taxation:

 From a deficiency in this particular, one of two evils must ensue; either the people must be subjected to continual plunder, as a substitute for a more eligible mode of supplying the public wants, or the government must sink into a fatal atrophy, and, in a short course of time, perish.

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.

In Federalist Paper #84, Hamilton explains that avoiding titles will allow the government to remain in the hands of the people:

This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.

Section 10: Powers Denied to the States

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.

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 Controul of the Congress.

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.

The states were essentially thirteen small countries. When they united under one flag, the states had to give up certain rights. Madison, in Federalist Paper #45, reassures us that the states retain any power not listed in the Constitution as belonging to the Union:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. 

Having explored Article I in some depth, we will turn next to Article II. To see the first two articles in this series, read Setting up the Senate and Setting up the House of Representatives.

Then stayed tuned for the next installment. Meanwhile, feel free to explore my blog and learn my take on current events and how you can influence the world (spoiler alert: VOTE!)

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Carla Pittman

Carla is a Speech Pathologist working in Home Health by day and a blogger by night. She married Chris in 2008 and is working to help him unite his love of guns with his passion for teaching others to carry safely. Her other impetus for blogging is to make Americans aware of their Constitutional rights, which are at risk in the current political environment.

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