Article I: Sections 2 & 3: The House and The Senate

It is worth remembering that the delegates who came to Philadelphia in 1787 did not arrive with the intent of drafting a Constitution but rather to amend the existing Articles of Confederation.

The Articles, in effect since 1781, had proven to be ineffective and it soon became clear to the delegates that an entirely new document would be needed. With that in mind they quietly set about creating what would become one of the seminal governing documents ever to be put on paper.

One of the major flaws of the Articles was the legislature, a single body with equal representation from each state that required unanimous agreement.  Obviously it would be difficult to get such agreement on any controversial issue.  Indeed the legislature rarely managed to pass any legislation particularly when it came to generating revenue.

In seeking to create a new governing body that delegates faced a fundamental conflict, showed representation be based on population or geography.  In resolving the conflict they looked through their former brethren across the ocean, the English parliament.

Like the parliament, the new Congress would consist of two chambers and upper and lower.  The lower chamber, called the House of Representatives would be based on population while the upper chamber, called the Senate would be based upon geography (i.e. the states).

Looking first to Section 2 and the House of Representatives, the first clause provides that the term of the members was to be 2 years and that the qualification to vote for these members would be the same as the largest branch of the state legislature in each state.

This somewhat odd sounding requirement was a reflection of the idea that while the framers wanted democracy they didn’t want too much democracy. They felt that in order to vote you should meet certain standards and that such standards should be left to each state.

As outlined in Clause 2, the basic qualifications were simple enough: you must be 25 years old, you must have been a citizen for 7 years and you must live in the state you are elected from. It is interesting to note that you do not have to live in the district you are elected to represent (and indeed for many years some house members were elected statewide from states a large as Ohio or Pennsylvania).

Under Clause 3, the House would be apportioned by population and it was here that it was necessary to address the question of slavery. If slaves were, as many from the South claimed, merely property then why should they be counted as population ? Similarly, if they were people, as many in the North claimed, they why shouldn’t they be counted ?

The solution to this dilemma was the infamous 3/5ths compromise which led to the standard that slaves counted as 3/5ths of a person. Looking back we find this standard horrible but it was a deal with the devil, needed to keep the nation united, though it merely delayed the inevitable.

It is interesting to note that there is no limit on the size of the House, other than the standard that a member must represent at least 30,000 people. Were this standard applied to the House today we would have a 10,000 member body.

In order to make sure that the changing population was reflected in the membership of the House there is a requirement of a census every ten years (ever wondered why we have that) though these once a decade reapportionments would be based on the 3/5ths rule.

Clause 3 also provides that direct taxes must be equally apportioned among the states, the idea here being that if your state has 10% of the population then the citizens of that state should pay 10% of “direct taxes”.

Direct taxes are things like property tax or a set tax per person, but do not include things like income taxes (which is why we later needed an amendment to impose income taxes).  Issues like direct taxes may seem obscure but they were an issue in the recent debate over health care reform.

This section also provides that when there are vacancies in the House a special election can be held but does not allow for any sort of appointment power as is possible with the Senate. This has always been a fairly routine process but given the possibility of a mass terror attack, it is possible we might face a future with the need to fill hundreds of seats at once. Perhaps this is an issue we need to reconsider.

The final clause of Section 2 provides that the House can elect a Speaker to preside (again reflecting the same office in the House of Commons. Interestingly there is no requirement that the Speaker be a member of the House and it thus would be legal for them to elect anyone they chose as speaker.

This clause also grants the House the power to impeach (while giving the power of conviction to the Senate), reflecting the broad idea of checks and balances. The executive branch might have powers over the legislative but they would have the power to remove the executive.

Section 3 covers the Senate and unlike Section 2 it has been significantly altered by amendments, though for purposes of this article I will review the section as written in order to consider the views of the founders and how they might apply today.

Originally the Senators were to be elected by the state legislatures. This was something of a compromise between the delegates. As discussed above the Congress was patterned after the British Parliament.

Unlike the elected members of the House of Commons, the members of the House of Lords were, and still are, named by the Monarch. The framers wanted a similar system for the Senate, with the idea of making it a more deliberative body that was not under the pressure of popular opinion.

At the same time they had just thrown off the yoke of a powerful monarch and there was a great deal of fear about putting power in the hands of a powerful executive.

So a compromise was made by having the Senators chosen by the State Legislature. This meant that the people would indirectly elect them because they would choose the legislators who chose the Senators. But at the same time there would be a buffer of sorts between these members and the people.

Indeed many saw the Senators as being more “ambassadors” from the States, a reflection of the still open question as to whether the United States was a single unit with subdivisions known as states or a grouping of independent states loosely gathered in a confederation (this question would remain open for at least another century).

To further insulate the Senate from the pressures of public opinion a decision was made to divide it into 3 groups, one elected every two years. This meant it would take at least six years for the membership to be entirely turned over, and thus it was much less likely that a brief public fervor would impact the views of the body.

The qualifications to be a Senator also reflect the concept that it would be a more “mature” chamber as you needed to be 30 years old and a citizen for 9 years (versus 25 and 7 for the House).

It is interesting to note that in the 19th century these qualifications (particularly the age standard) were often winked at due to the fact that birth records were much less precise in that era. It is thought that we have had a number of 29 year old Senators or 24 year old Congressman.

The framers had already decided to create the office of Vice President (even though it would not be addressed until Article II) and they needed something for him to do, so they made him President (IE presiding officer) of the Senate but said he would only vote when there was a tie.

At the same time in the next Clause they give the Senate the power to elect “other officers” including a “President Pro Tempore” to act when the Vice President was not available for whatever reason

The ambiguous nature of these section led to a question as to the extent of the Vice Presidents power in the Senate (for example could he participate in debates). This was settled rather quickly when Vice President Adams tried to do so and the Senate quickly voted to say that the Vice President has no voice, he may only act as presiding officer or tiebreaker.

Clauses 6 and 7 give the Senate the power to hold trials of impeachment on all executive and judicial branch officials, requiring a 2/3rds majority for conviction. This was intended to reflect the idea that we must be careful in taking the serious step of removing someone from office.


Posted on February 5, 2013, in Art 1 Sect 2, Art 1 Sect 3, Article 1, House of Representatives, Patrick, The Senate and tagged , , , , , . Bookmark the permalink. Leave a comment.

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