Article I, Section 1:

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.

Although the states generally favored a bicameral legislature,1 the states were heavily divided over the representation in each branch of Congress.2 To resolve these concerns, the Convention delegates approved forming a “compromise committee” to devise a compromise among the proposed plans for Congress.3 The committee proposed a plan that became known as the Great Compromise.4 The plan provided for a bicameral legislature with proportional representation based on a state’s population for one chamber and equal state representation in the other.5 For the House of Representatives, the plan proposed that each state would have “one representative for every 40,000 inhabitants,” elected by the people.6 For the Senate, the committee proposed that each state would have an equal vote with members elected by the individual state legislatures.7 After significant debate, the Convention adopted the Great Compromise on July 16, 1787.8

During the state ratification debates that followed the Convention, one of the central objections from the Anti-Federalists was that the consolidation of government power in a national Congress could “destroy” state legislative power.9 The Federalists attempted to curb these fears by noting that the sovereign power of the Nation resides in the people, and the Constitution merely “distribute[s] one portion of power” to the state and “another proportion to the government of the United States.” 10 To further allay Anti-Federalist concerns regarding concentrated federal power in Congress, the Federalists emphasized that bicameralism, which lodged legislative power directly in the state governments through equal representation in the Senate, would serve to restrain, separate, and check federal power.11

In vesting the legislative power in a bicameral Congress, the Framers of the Constitution purposefully divided and dispersed that power between two chambers—the House of Representatives with representation based on a state’s population and the Senate with equal state representation.12 The Framers recognized that the division of legislative power between two distinct chambers of elected members was needed “to protect liberty” and address the states’ fear of an imbalance of power in Congress.13 As later explained by Chief Justice Warren Burger, “the Great Compromise, under which one House was viewed as representing the people and the other the states, allayed the fears of both the large and small states.” 14

By diffusing legislative power between two chambers of Congress in the legislative Vesting Clause, the Framers of the Constitution sought to promote the separation of powers, federalism, and individual rights.15 They designed the bicameral Congress so that “legislative power would be exercised only after opportunity for full study and debate in separate settings.” 16 While acknowledging that the bicameral legislative process often produces conflict, inefficiency, and “in some instances [can] be injurious as well as beneficial,” the Framers believed that the intricate law-making process promotes open discussion and safeguards against “against improper acts of legislation.” 17 As the Supreme Court later explained, the “legislative steps outlined in Art. I are not empty formalities” but serve to “make certain that there is an opportunity for deliberation and debate.” 18

Footnotes

1

1 The Records of The Federal Convention of 1787, at 54–55 (Max Farrand ed., 1911).

2

Id. at 509; Max Farrand, The Framing of the Constitution of the United States 92 (1913).

3

Farrand, Framing of the Constitution, supra note 2, at 97–98.

4

See generally id. at 91–112 (discussing the process that led to the Great Compromise). Roger Sherman and other delegates from Connecticut repeatedly advanced a legislative structure early in the Convention debates that eventually was proposed as the Great Compromise. See 1 The Records of The Federal Convention of 1787, supra note 2, at 196. Historians often credit Sherman and the Connecticut delegates as the architects of the Great Compromise. Mark David Hall, Roger Sherman and the Creation of the American Republic 96–98 (2013) (discussing Sherman’s proposal during the Convention debates that led to the “Connecticut Compromise” ); Farrand, Framing of the Constitution, supra note 2, at 106. See also Wesberry v. Sanders, 376 U.S. 1, 12–13 (1964) (discussing Sherman’s role in the Great Compromise).

5

1 The Records of The Federal Convention of 1787, supra note 1, at 524. See Farrand, Framing of the Constitution, supra note 2, at 104–07.

6

1 The Records of The Federal Convention of 1787, supra note 1, at 526. The compromise was amended to allow that state inhabitants would also include “three-fifths of the slaves” in the state. Id. at 603–06; Farrand, Framing of the Constitution, supra note 2, at 99. For discussion of the “three-fifths” clause, see Intro.6.1 Continental Congress and Adoption of the Articles of Confederation.

7

1 The Records of The Federal Convention of 1787, supra note 1, at 160. In 1913, the states ratified the Seventeenth amendment that requires members of the Senate to be elected by the people.

8

Farrand, Framing of the Constitution, supra note 2, at 104–07; 1 Congressional Quarterly, Inc., Guide to Congress 358, 367–68 (5th ed. 2000) (discussing of the ratification of the Seventeenth Amendment).

9

Gordon S. Wood, Creation of the American Republic 1776–1787, at 526–530 (1969) (discussing state ratifications concerning the jurisdiction of federal and state legislatures under the Constitution).

10

Id. at 530 (quoting James Wilson from the Pennsylvania ratifying convention from Pennsylvania and the Federal Constitution 1787–1788, at 302 (John Bach McMaster & Frederick D. Stone, eds. 2011)).

11

See id. at 559 (analyzing the Federalists’ views of bicameralism).

12

U.S. Const. art. I, § 7. cl. 2. See The Federalist No. 39 (James Madison) ( “The house of representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the Legislature of a particular State. So far the Government is national not federal. The Senate on the other hand will derive its powers from the States, as political and co-equal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national.” ).

13

See Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 950 (1983) ( “[T]he Framers were . . . concerned, although not of one mind, over the apprehensions of the smaller states. Those states feared a commonality of interest among the larger states would work to their disadvantage; representatives of the larger states, on the other hand, were skeptical of a legislature that could pass laws favoring a minority of the people.” See also The Federalist No. 51 (James Madison) ( “In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.” ); Farrand, Framing of the Constitution, supra note 2, at 99–112 (describing the debate among the states regarding the structure of Congress).

14

Chadha, 462 U.S. at 950. See also Farrand, Framing of the Constitution, supra note 2, at 105–06 (explaining the structure of Congress as achieved under the “Great Compromise” ).

15

See The Federalist No. 62 (James Madison) ( “[A] senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.” ). See also John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 708–09 (1997) (describing how the legislative procedures “promote caution and deliberation; by mandating that each piece of legislation clear an intricate process involving distinct constitutional actors, bicameralism and presentment reduce the incidence of hasty and ill-considered legislation” ).

16

Chadha, 462 U.S. at 951.

17

The Federalist No. 62 (James Madison). John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 709–10 (1997) (discussing the legislative process as protection against “hasty and ill-considered legislation” ). Some scholars have argued that the Framers deliberately designed the lawmaking process to be slow and inefficient so that the laws that passed were sufficiently deliberative, representative, and accountable. See, e.g., Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum. L. Rev. 452, 524 (1989) ( “The Confederation period led [the Framers] to conclude that government which moved too quickly in establishing and altering policy was, over time, less likely to make wise choices and more likely to threaten individual liberty. Therefore, they deliberately created a lawmaking process that was slow, even cumbersome.” ).

18

Chadha, 462 U.S. at 958 n.23.