The Founding Fathers feared the power of the legislative branch from its inception in the late 1700s. They did not want to trade one tyrant for a group of tyrants, one professor tells “The Daily Signal Podcast,” so they “deliberately made Congress weak by dividing it up into these two bodies,” the House and the Senate.
According to Joseph Postell, Hillsdale College associate professor of politics and Heritage Foundation visiting fellow, the Founders wanted the House and Senate to “fight amongst each other” because this would create a check on power. And fight they did. (The Daily Signal is the news outlet of The Heritage Foundation.)
“The early politicians were really committed to their principles and were willing to fight over them,” Postell said, adding that “Duels were very common.”
Postell joins “The Daily Signal Podcast” for Part One of a three-part series on how Congress really works. He discusses the history of Congress and what the Founding Fathers would say about what the legislative branch has become today.
Listen to the podcast below or read the lightly edited transcript:
Virginia Allen: It is my pleasure today to be joined by Hillsdale College associate professor of politics and Heritage Foundation visiting fellow Joseph Postell. Mr. Postell, thanks so much for being with us today.
Joseph Postell: It’s great to be with you.
Allen: Well, I’m excited because we are taking the next few days to talk about how Congress really works. And in order to do that, though, we need to go back to how Congress was first intended to work, what the Founders really intended.
So, I want to go all the way back to the 1700s first, and specifically to 1774. That’s when we had the first meeting of the Continental Congress. What was the Continental Congress?
Postell: The Continental Congress precedes the United States Constitution. I think one of the interesting things about the Continental Congress is the word itself, Congress.
So unlike, say, Parliament, which was the idea of a legislative body with which the Framers were familiar, Congress implies something more like a bunch of different countries or different groups of people coming together to hash out their differences.
They use this term Congress even before the Constitution is ratified to set up the United States Congress we have today. They use this word Congress because they really believed in a federal system. They really believed that they were states that were united for limited purposes, but a lot of the power and the sovereignty was going to lie back with the states.
So under this conception, really, it’s not an entirely national system. It’s actually a federal system in which the Congress is almost like diplomatic representatives from different countries coming together to kind of deal with issues like trade and military defense and things like that.
You can even see from the very beginning, all the way back, as you suggest, the idea of Congress as it’s supposed to be, people who come from different backgrounds, from different interests, from different groups of people, from different parts of the country.
And it would be a very diverse collection of interests that might not agree on everything, but would have to somehow get along to advance the interest of the union as a whole.
Allen: And then we move forward just a little bit on the timeline to 1789. And that marks, really, the first Congress, more or less as we know it today. This is, of course, following the Revolutionary War. We have the failures of the Articles of Confederation. And what did the Founders have in mind as they crafted that first Congress?
Postell: Yeah, so, the first Congress, like you say, in 1789, is referred to as the First Congress. That’s sort of its official name. It makes really important decisions that have very high presidential value.
There’s even one decision they make about who gets to fire the heads of departments, like the Treasury and State and Foreign Affairs departments. And we actually call it the Decision of 1789 because it’s that important.
The First Congress makes these really important decisions about how the government’s going to be set up, who’s actually going to be in charge of various functions.
But I think the deeper question here is, what did the Framers expect Congress to be? They really saw that the Congress would be the centerpiece of the republican system. They saw this new experiment in self-government, which we would elect our own representatives, and those representatives would make the laws. And the power would really rest with that legislative body.
But they didn’t have a lot of clearly thought-out ideas about how representatives were supposed to behave. They didn’t have a lot of experience with republican government, with popular government. It really wasn’t the norm when the Constitution was ratified.
So when you read Article 1 of the Constitution, there actually isn’t that much there about what kinds of rules there should be, what kinds of debate rules, what kinds of procedural rules, what kinds of committees there should be. A lot of that was really supposed to be sketched out by experience.
So what they did really believe in, fundamentally, was the right of the people to rule themselves through their elected representatives. And so how that was going to take place, how these different people were going to get along, how they were actually going to come to agreement on issues, that was really left to practice.
And the Framers learned very quickly that it was going to be a lot more difficult to make Congress work than in theory. They really saw republics as you elect your representative, they go to the Capitol, and then they make some laws.
But actually, how that process plays out is very complicated. And I think the Framers realized that experience was going to have to inform the kinds of structures they were going to set up to make that Congress work well.
Allen: Talk a little bit more about that if you would. What were the specific things that are laid out in the Constitution that the Founders said, “Yes, we want this power to rest in the hands of Congress?” And then, what are the areas, in especially those initial years, that they started to realize, “Oh, this is a power that we need to ensure that Congress does have,” that maybe wasn’t explicitly originally laid out in the Constitution?
Postell: They think immediately that the big priorities for the early Congress, for the First Congress, and a few years after that, are to set up a revenue system, set up a tariff system, so that you can deal with the question of raising revenue for the country.
The country is in massive debt because of the Revolutionary War. So a lot of the financial issues needed to be worked out.
This is why Alexander Hamilton has become so famous, is because we’ve now learned so much about what Alexander Hamilton was doing behind the scenes to influence Congress from his position as secretary of the treasury, to get the nation on a firm financial footing, to pass revenue bills that would allow for the government to raise money to establish a national bank—which itself was highly controversial, about whether Congress actually had that power or not—but to do all of these things that would kind of provide for a stable economy at the national level.
So those are some of the major issues that Congress is dealing with. Congress has to figure out how to raise an army, or whether even to raise an army, a navy. So national defense and sort of very high-level economic issues about the nation’s fiscal situation, these were the real priorities of the Congress in the early years.
And also, I suppose, setting up a judicial system, which really did have to be done through statute because the courts below the Supreme Court were really left to Congress to figure out how many there would be, how they’d be organized, and so forth.
So there’s a lot for Congress to do, and Congress does it relatively well. But really, the fundamental problem is chaos. The early Congress is extremely chaotic compared to today’s Congress, which seems a lot more rehearsed.
People stand up and they give speeches in Congress today, but it’s not clear that anybody’s really listening or anybody’s changing their votes. There’s no drama, there’s no tension in the Congress today, a lot of it’s very scripted.
But in the early Congress it was a lot more chaotic. And in some ways that was good, but in some ways that was also a real problem.
Allen: Let’s weigh in a little bit more on that because I think people think of Congress today and honestly, for so many individuals, we see these clips on social media where maybe two lawmakers get into it on the floor of Congress and there’s a back and forth, and there might be some name-calling. And today, there’s often a reference to a need to bring civility back to Congress. But you’re saying that things used to actually be even more contentious. Explain that if you would.
Postell: Yeah, actually, in a way, if you were to measure the kind of conflict that occurs in Congress, just personalities engaging in name-calling or violence, the early, say, first 60 years of the nation’s history, there’s a lot more violence and a lot more name-calling in Congress than there is today. So in a way, conflict has actually gotten less intense in Congress today.
There’s a lot of interesting things to take away from that. Maybe the politicians, in a way, they seem to be fighting more, but they actually are getting along. They have a way of getting along, whereas the early politicians were really committed to their principles and were willing to fight over them.
Duels were very common. John Randolph and Henry Clay, two great early leaders of Congress, they engage in a famous duel. If you are in Washington, D.C., and you’re on the George Washington Parkway, there’s a sign where the duel took place, actually, just to commemorate the place where it’s at. And it was interesting.
The other interesting thing about this is that Randolph and Clay were adversaries over a generation. I mean, they fought in the House of Representatives in the 1810s. And they fought, really, all the way up to the 1840s over issues of centralization of power, the building of canals, and the national banks still stood as a major issue. And nevertheless, they really respected each other.
And as Randolph is dying, he’s sort of wheeled back into the Senate to hear one of Clay’s last speeches before Randolph passes away, and he says, “Send me to the Senate so I can hear that voice one last time,” before he passes away.
So they engaged in these great debates and they fought really bitterly over the principles that they believed in. But somehow in the early period, they found a way to resolve their differences.
And I think that’s the biggest thing today that’s different. They would fight probably in a more intense way than we fight today, and yet they would still figure out that they had to come together, they had to agree, they had to compromise.
So something has been lost, I think, in the time since then that our politicians don’t really work together very much anymore. They are willing to fight, but they’re not willing to be grown-ups and sort of overcome their differences at the end of the day.
Allen: That’s so fascinating. Now, when the Founders were crafting Congress, why did they see a need for two separate entities, to have a House and a Senate?
Postell: Yeah, it’s a great question, and it’s really the most important question. All these other questions are more technical and procedural. But I think the question you’re asking really gets at the most significant thing about Congress, and that is that they wanted to split the legislative power up into these two very different institutions.
This is something that people don’t realize about the American Founders, or it’s a myth that they often believe the opposite. I always ask my students, which of the powers of government did the Founders fear the most? And they always say the executive because of King George and monarchy and all of that.
But actually, it’s very clear in the Federalist Papers that the power that they’re most afraid of is the legislative power. They think that you’re going to trade one tyrant for 150 or 435 or 535. So they’re really concerned about the overwhelming power of the legislative branch. James Madison calls it the impetuous vortex in Federalist 48.
And so they basically say, because the legislative power is going to be the really dominant part of our government, we have to divide it up so that it’s weaker.
So they actually deliberately made Congress weak by dividing it up into these two bodies, and then saying, essentially, we want these two bodies to actually fight amongst each other. So the House and the Senate should actually fight with each other rather than join and fight the executive branch.
And so I think one of the things we’re thinking about in the 21st century is whether that system works too well today, whether Congress is actually too weak because it was deliberately made weaker by the Constitution, by dividing it up into these two different bodies, the House and the Senate.
So how do we get the House and the Senate to actually work together when it’s today the president who seems to have way too much power and the representatives need to sort of take the power back from the executive?
Allen: If the Founding Fathers looked at Congress today, would they be glad at the structure? What do you think their thoughts and takeaways would be as far as how Congress has progressed? Would they be surprised?
Postell: Yeah, that’s a really good question. It’s a hard question. I think they would be probably more happy with Congress than we are today, but I don’t think they would be entirely happy.
Americans today have a really dismal view of Congress. The approval ratings are like in the teens, and it’s just consistently over years and years and years. I think the Framers would probably say we still hold elections, we still have representatives, they still voice our opinions. And the government still, generally speaking, responds to changes in public opinion.
I think the things that they would be most disappointed in are, first of all, and most significantly, the delegation of all of this power by Congress over to the bureaucracy.
I think they would say the Congress doesn’t make the important decisions today. These are all made in the administrative state. And we set up a republic. We didn’t set up an administrative state. So I think they would be extremely disappointed by the delegation of power to the bureaucracy.
But on the other hand, I think they would say that all of these changes that have taken place, especially in transportation and communication, I think they would understand that Congress has evolved as those changes have taken place.
So, for instance, they don’t get a quorum in the First Congress until five months after Washington is inaugurated because people have to travel by wagon or by horse for hundreds of miles, and it takes them months to do it. Today, members of Congress sort of fly back and forth all the time, and it’s not as significant of an issue.
So I think they would say, obviously, Congress will change as these circumstances change, but I think they would be really disappointed in how Congress has given up the really important decisions and how so much of our government is now exercised, not by our representatives, but by executive branch or administrative officials.
Allen: Joseph Postell, thank you so much for your time today.
Postell: It was great to be with you. I look forward to listening to the rest of the series.
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