—————- current events through a historical lens————————
Of all the sentences in the Constitution, Article I, Section I is the most important and today is also the most abused.
Our Founders created a document they knew they needed but were afraid of. They feared an all-powerful government that would control them. To help quiet their fears they created the Vesting Clause, which limits the power of government.
Article I, Section I reads, “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.”
The most important line is “All legislative Powers herein granted shall be vested in a Congress.” Another way of saying this is that only Congress can make laws. That’s it. No one else, not even the president. In fact, especially the president. How do you protect freedom? You ensure that one man by himself cannot make laws.
Today presidents make laws all the time. They call them executive orders – something we will cover later – but every time an executive order creates law, it should be deemed unconstitutional according to the Vesting Clause.
We saw this with the bump stock ruling in the U.S. Supreme Court. Congress passed a law defining what constitutes an automatic weapon. The president instructed the Bureau of Alcohol, Tobacco, Firearms and Explosives to classify bump stocks as automatic weapons changing the definition that Congress had passed. That is why the Supreme Court ruled against it. It had nothing to do with gun control and everything to do with Executive Branch overreach. Congress could classify bump stocks as automatic tomorrow if they wanted to, and the Court could not interfere. The Supreme Court has made several similar decisions lately. While the Justices are being accused of possessing a conservative bias, they are actually enforcing the Vesting Clause that has been long ignored by past courts.
In 1935 the Supreme Court reenforced this idea. In A. L. A. Schechter Poultry Corporation v. United States, the poultry corporation was indicted for breaking a New York Poultry Code but argued that the code was unconstitutional because it was made by the president and not Congress. The Court agreed and unanimously stated the president could not make laws even if he believed it necessary and that the Vesting Clause does not allow Congress to delegate their legislative powers.
To protect the people, all laws must go through the process which is what the rest of the sections in Article I describe. Part of the process is created in the remaining of Section I, a bicameral legislature. The old Articles of Confederation had only one legislative body. But as British subjects, our Founders were used to a bicameral legislature as the British Parliament had both the House of Lords and the House of Commons and almost all the new state governments were bicameral.
A bicameral legislature served two purposes. First, it added another layer of protection for the people and states. In order to create laws, a bill would have to pass out of both houses making it that much more difficult to pass. What we call gridlock today is actually a check on government power. Sure, it seems like nothing ever gets done, but the alternative is the government doing too much. My favorite line is “the only thing worse than too much gridlock is no gridlock.”
Secondly, a bicameral legislature gave more accurate representation. In England, the House of Lords represented the aristocracy while the House of Commons represented the people. With the U.S. Constitution, the upper house (Senate) represented the elites but also the states themselves (this will be seen in Section III,) while the lower house (House of Representatives) represents the people. We will see in Section II that Representatives are the only people directly elected by the people.
This creation of a bicameral legislature also caused one of the great debates in the Constitutional Convention leading the Great Compromise. When it came to representation, the larger and smaller states disagreed between equal representation like with the Articles of Confederation or representation based on population. They argued that more populated states should have more say. The compromise was that since the Senate represents the states, it should have equal representation (two senators per state). The House represents the people and representation should be based on population. All this was spelled out in the next two sections.
If we want protection from too much government then only Congress should make laws. The other two branches of government must respect that.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeakingl 776@gmail.com.
