- Historic Sites
October 1974 | Volume 25, Issue 6
Although a hundred and eighty-five years have passed since William Maclay, the freshman senator from Pennsylvania, began to record his bitter disillusionment with the Congress of the United States (see page 48), his sense of outrage and betrayal has a contemporary ring. As recently as midwinter less than a year ago national pollsters discovered that only 22 per cent of the American public believed that Congress was doing an effective job, that in fact a vast majority saw the legislative branch as the least responsive of all federal institutions to the problems and needs of the twentieth-century world.
Perhaps the only persons surprised by this massive vote of no confidence were the members of Congress themselves, for traditionally they have embraced the view of an anonymous nineteenth-century observer that they belong to “the greatest legislative body on earth.” That oftrepeated phrase may well be true, but it is equally certain that Congress has projected a distinctly bloodless image. In contrast to the Presidency and the courts, which have risen to positions of unparalleled power and prestige over the past forty years, Congress has remained moored in the past, encumbered by discredited procedures, ancient prejudices, and outmoded ways. In our triune system of government it has been the most resistant to change; as a consequence its record is the least celebrated and its potential the least realized.
Once the master of Presidents and the focus of national political life, Congress in modern times has subordinated itself to the will of an almost all-powerful executive—one measure of which is the extraordinary complaint from the leaders of both political parties in late March, 1969, that Congress had been unable to act because President Nixon, after two months in office, had not yet sent a legislative program to Capitol Hill. Apparently unwilling to assume the initiative in the lawmaking process, acting slowly—if at all—the national legislature now appears to confront the pressing problems of contemporary America with stunning indifference and so seems a mere shadow of the legendary revolutionary assembly that presided over the nation’s birth.
Yet it is clear that the Founding Fathers, despite some reservations, intended Congress to be the most powerful and responsive of the three branches of government in the federal system. Article 1, Section 8 of the Constitution grants Congress a wide range of legislative authority, including taxation, monetary control, the regulation of interstate commerce, the admission of new states, the warmaking power, and, in conjunction with either the states or the President as Commander in Chief, control of the state militias and the military establishment of the United States. In the broadest grant of all—the so-called elastic clause—Congress is empowered to “make all Laws which shall be necessary and proper” to carry out its manifold duties, both as an independent branch and in concert with the executive and the courts.
Not all of these powers, of course, were easily conferred. A sizable minority at the Constitutional Convention feared that Congress in time might overwhelm the other two branches, arrogating to itself powers that properly belonged elsewhere or simply riding roughshod over the delicate system of checks and balances that was meant to establish a political equilibrium. Agreed only that Congress should be a bicameral legislature, the delegates to Philadelphia struggled through weeks of sometimes heated debate to define such matters as apportionment of representation, membership requirements, and allocations of power in a way that would satisfy as far as possible every faction in the convention. Drawing heavily on their knowledge of the British Parliament and the colonial assemblies, they sought to avoid the weaknesses of the Continental and Confederation congresses, each of which had lacked enough real authority for independent action, and at the same time the delegates tried to reconcile the differences between the advocates of a strong central (or national) government and the supporters of states’ rights.
In the end the solutions they offered take something of a middle ground, based, like the Constitution as a whole, on the principle of mutual restraint and on the careful balancing of interests through a kind of political horsetrading. Thus from the moment of its conception Congress was a child of compromise, and to some extent its members have traditionally adopted a cautious centrist position on most legislative matters simply because the Constitution provides no other course.
For much of our history the constitutional restraints made little difference in congressional power. Indeed, until 1933 Congress tended to dominate the other two branches—as the Founding Fathers thought it would. Except in times of national crisis, like the Civil War, the President remained a custodian of his office, content to follow the direction of the legislative branch, and the Supreme Court rarely assumed an activist role.