Article 1, Section 1

Document 10

James Kent, Commentaries 1:207--10


The power of making laws is the supreme power in a state, and the department in which it resides will naturally have such a preponderance in the political system, and act with such mighty force upon the public mind, that the line of separation between that and the other branches of the government ought to be marked very distinctly, and with the most careful precision.

The constitution of the United States has effected this purpose with great felicity of execution, and in a way well calculated to preserve the equal balance of the government, and the harmony of its operations. It has not only made a general delegation of the legislative power to one branch of the government, of the executive to another, and of the judicial to the third, but it has specially defined the general powers and duties of each of those departments. This was essential to peace and safety in a government clothed only with specific powers for national purposes, and erected in the midst of numerous state governments retaining the exclusive control of their local concerns. It will be the object of this lecture to review the legislative department, and I shall consider this great title in our national polity under the following heads: (1.) The constituent parts of congress, and the mode of their appointment; (2.) Their joint and separate powers and privileges; (3.) Their method of enacting laws, with the qualified negative of the President.

(1.) By the constitution, all the legislative powers therein granted, are vested in a congress, consisting of a senate and house of representatives.

The division of the legislature into two separate and independent branches, is founded in such obvious principles of good policy, and is so strongly recommended by the unequivocal language of experience, that it has obtained the general approbation of the people of this country. The great object of this separation of the legislature into two houses, acting separately, and with co-ordinate powers, is to destroy the evil effects of sudden and strong excitement, and of precipitate measures springing from passion, caprice, prejudice, personal influence, and party intrigue, and which have been found, by sad experience, to exercise a potent and dangerous sway in single assemblies. A hasty decision is not so likely to arrive to the solemnities of a law, when it is to be arrested in its course, and made to undergo the deliberation, and probably the jealous and critical revision, of another and a rival body of men, sitting in a different place, and under better advantages to avoid the prepossessions and correct the errors of the other branch. The legislatures of Pennsylania and Georgia consisted originally of a single house. The instability and passion which marked their proceedings were very visible at the time, and the subject of much public animadversion; and in the subsequent reform of their constitutions, the people were so sensible of this defect, and of the inconvenience they had suffered from it, that in both states a senate was introduced. No portion of the political history of mankind is more full of instructive lessons on this subject, or contains more striking proof of the faction, instability, and misery of states, under the dominion of a single unchecked assembly, than that of the Italian republics of the middle ages; and which arose in great numbers, and with dazzling but transient splendour, in the interval between the fall of the Western and the Eastern empire of the Romans. They were all alike ill constituted, with a single unbalanced assembly. They were all alike miserable, and all ended in similar disgrace.

Many speculative writers and theoretical politicians, about the time of the commencement of the French revolution, were struck with the simplicity of a legislature with a single assembly, and concluded that more than one house was useless and expensive. This led the elder President Adams to write and publish his great work, entitled, "A Defence of the Constitutions of Government of the United States," in which he vindicates, with much learning and ability, the value and necessity of the division of the legislature into two branches, and of the distribution of the different powers of the government into distinct departments. He reviewed the history, and examined the construction of all mixed and free governments which had ever existed, from the earliest records of time, in order to deduce with more certainty and force his great practical truth, that single assemblies, without check or balance, or a government with all authority collected into one centre, according to the notion of M. Turgot, were visionary, violent, intriguing, corrupt and tyrannical dominations of majorities over minorities, and uniformly and rapidly terminating their career in a profligate despotism.

This visionary notion of a single house of the legislature was carried into the constitution which the French national assembly adopted in 1791. The very nature of things, said the intemperate and crude politicians of that assembly, was adverse to every division of the legislative body; and that, as the nation which was represented was one, so the representative body ought to be one also. The will of the nation was indivisible, and so ought to be the voice which pronounced it. If there were two chambers, with a veto upon the acts of each other, in some cases they would be reduced to perfect inaction. By such reasoning, the national assembly of France, consisting of upwards of one thousand members, after a short and tumultuous debate, almost unanimously voted to reject the proposition of an upper house. The same false and vicious principle continued for some time longer to prevail with the theorists of that country; and a single house was likewise established in the plan of government published by the French convention in 1793. The instability and violent measures of that convention, which continued for some years to fill all Europe with astonishment and horror, tended to display in a most forcible and affecting light, the miseries of a single unchecked body of men, clothed with all the legislative powers of the state. It is very possible that the French nation might have been hurried into the excesses of a revolution even under a better organization of their government; but if the proposition of M. Lally Tolendal to constitute a senate, or upper house, to be composed of members chosen for life, had prevailed, the constitution would have had much more stability, and afforded infinitely greater probability of preserving the nation in order and tranquillity. Their own sufferings taught the French people to listen to that oracle of wisdom, the experience of other countries and ages, and which for some years they had utterly disregarded, amidst the hurry and the violence of those passions by which they were inflamed. No people, said M. Boissy d'Angles in 1795, can testify to the world with more truth and sincerity than Frenchmen can do, the dangers inherent in a single legislative assembly, and the point to which factions may mislead an assembly without reins or counterpoise. We accordingly find that in the next constitution, which arose in 1797, there was a division of the legislature, and a council of ancients was introduced to give stability and moderation to the government; and this idea of two houses was never afterwards abandoned.

The Founders' Constitution
Volume 2, Article 1, Section 1, Document 10
The University of Chicago Press

Kent, James. Commentaries on American Law. 4 vols. New York, 1826--30.

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