Dr. Almon Leroy Way, Jr.,

University President & Professor of Political Science


1. The U.S. Congress -- A Bicameral National Legislature:

a. The U.S. House of Representatives -- The Lower Chamber:

Seats in the House of Representatives were to be apportioned among the states according to population. Each state was entitled to a number of House seats based on that state's total free population and three-fifths of the slaves.

House seats were to be filled by direct popular election, the U.S. Representatives being elected to two-year terms, with all terms expiring at the same time.

        (Once elections began to be held under the U.S. Constitution, the states quickly         adopted the following practice for U.S. House elections:

        The legislature of each state divided the state into a number of congressional         districts (U.S. House election districts) equal to the number of seats the state was         entitled to fill in the U.S. House. The voters in each congressional district elected         one member of the U.S. House of Representatives.

        The foregoing practice is now required by federal statute.)

All revenue bills had to originate in the House of Representatives.

b. The U.S. Senate -- The Upper House:

There was to be equal representation of the states in the U.S. Senate, with two U.S. Senators chosen by each state. A state's two Senators were to be elected by the legislature of that state.

U.S. Senators were to be elected to six-year terms, staggered, with the terms of one-third of the Senators expiring every two years.

While all revenue bills had to originate in the House of Representatives, the Senate possessed the full power of debate and amendment.

c. The Power of Absolute Veto over National Legislation:

Each of the two chambers of Congress was to have the power of absolute veto over national legislation. A majority in either house could prevent enactment of a law approved by a majority in the other house.

d. The Constitutional Powers of Congress:

Under the U.S. Constitution, Congress was to possess and exercise (1) all the powers granted to Congress by the Articles of Confederation and (2) many other powers, including authority to (a) regulate interstate and foreign commerce and (b) lay and collect taxes.

Included in the taxing power of Congress was authority to levy the following kinds of taxes:

    Indirect Taxes:

          Excise Taxes -- taxes on goods produced and sold within the U.S.A.;

          Import Taxes -- tariffs and customs duties on imports;
          (Power to levy export taxes was denied to Congress by the Constitution.)

    Direct Taxes:

          Capitation taxes -- head taxes, or poll taxes;
          A capitation tax is a tax per person, levied on each person's head.)

          Land Taxes -- taxes on real estate.

          (All federal direct taxes had to be apportioned among the states according to       population. The Sixteenth Amendment, ratified in 1913, removed income taxes       from the category of direct taxes that had to be apportioned among the states       according to population.)

2. The President of the U.S.A. -- The National Chief Executive:

        Unitary Executive. The top executive authority in the national government was to be a single office occupied by one person. The top national executive officer, the President, was to possess and exercise substantial authority under the Constitution, be fully in charge of the executive branch of the government, amd be constitutionally separate from and largely independent of the legislature.

Past political experience was, of course, the source of the idea of a unitary executive, a single chief executive officer at the apex and fully in command of the executive branch of the national governmenr. That political experience included early American experience, i.e., experience with establishment and operation of governmental institutions during the brief period between adoption of the Declaration of Independence in 1776 and the meeting of the Federal Constitutional Convention in 1776. The Convention delegates were greatly influenced by the constitutional position and authority of the office of Governor in the New York state government (under the New York Constitution of 1777) and in the Massachusetts Commonwealth government (under the Massachusetts Constitution of 1780). In drafting Article II -- the executive article -- of the U.S. Constitution, the delegates were influenced, in particular, by the executive article in the 1777 Constitution of the State of New York.

Political experience as a source of the Americans' idea of a unitary executive in the U.S. nantional government included their understanding and perception of the constitutional position and power of the office of Monarch in the English/British government during the late sixteenth, seventeenth, and early eighteenth centuries.

        How the President was to Be Chosen. The President was to be indirectly elected, rather than elected by a direct nationwide popular vote. The President was to be elected by an Electoral College, which would consist of presidential electors chosen by the states. Each state would choose a number of presidential electors equal to the total number of Senators and Representatives to which the state was entitled in the U.S. Congress.

In each state, the method of choice of that state's presidential electors would be determined by the state legislature. Presumably, the Framers of the Constitution expected the legislature of a state to choose the presidential electors for that state.

The U.S. Constitution did not (and still does not) mandate popular election of presidential electors.

Moreover, The Constitution did not (and still does not) require presidential electors, in voting for President, to follow the wishes of either the legislature or the qualified voters in their respective states. The historical evidence indicates that the Framers expected each presidential elector to vote independently in the presidential election. The Framers expected each presidential elector to vote according to his own judgement and convictions regarding what was in the best interests of the country.

               [It is long-standing political tradition (long-standing political custom) -- not the
               Constitution -- which dictates that presidential electors reflect the wishes of the
               voters in electing the President.]

Incumbent members of Congress and other officeholders in the national government were to be ineligible for election as presidential electors. This restriction was designed to prevent Congress from electing the President, to avoid a situation in which the President would be beholding to the members of Congress, unable to resist their pressures and demands, and thus subservient to the wishes of congressional majorities. The election or reelection of the national chief executive would not be dependent upon majority support in the national legislature.

        The President's Tenure of Office. The President' term of office was to be four years. Prior to the addition of the Twenty-second Amendment to the U.S. Constitution in 1951, no limit on the President's eligibility for reelection was stipulated in the Constitution. The Constitution, as drafted by the Constitutional Convention and ratified by the states, placed no limit on the number of four-year terms a person could serve as President.

        The President's Veto Power over National Legislation. The President was to possess a very strong, but not absolute, veto over congressional legislation. The President was to have what is known as a "conditional veto," or "suspensive veto. A bill passed by the two houses of Congress could not become law without the President's consent and signature, unless each of the two houses voted by at least a two-thirds majority to override the President's objection to the bill.

        The President's Treaty-Making Power. The President would have power to make treaties, subject to ratification by a two-thirds vote in the U.S. Senate. No treaty could go into effect as American law until the President had submitted it to the Senate and the latter had, by at least a two-thirds vote, ratified the treaty. In short, the President shared the treaty-making power with a two-thirds majority in the Senate.

3. The Federal Judiciary -- The U.S. Courts:

The judicial branch of the national government would consist of (1) the Supreme Court of the United States and (2) such lower federal courts as Congress might create by law.

The U.S. Courts would hear and decide cases under national law, i.e., cases arising under the U.S. Constitution, statutes enacted by Congress in pursuance of the U.S. Constitution, and treaties made under the authority of the national government. The state courts would hear and decide cases under state law; in a given state, the courts of that state would hear and decide cases under its own laws. The court system at each level -- federal and state -- would have its own separate jurisdiction.

The U.S. Supreme Court would be the highest federal court and would have the right of final judicial decision in all federal cases brought before it.

Federal judges (including U.S. Supreme Court justices) were to be appointed by the President, subject to the consent of the U.S. Senate. Before a judicial appointment could go into effect, the appointment would have to be confirmed by majority vote in the Senate. In short, the President and a majority in the Senate shared the power of judicial appointment.

A federal judge's term of office was to be during good behavior. That is, the judge could hold his office as long as he lived or as long as he was not charged with an impeachable offense and tried and convicted of having committed that offense. The only way a federal judge could be removed from office before death and against his will was to be through congressional impeachment procedures, whereby (1) the House of Representatives, by majority vote, impeached -- brought charges against -- the judge and (2) the Senate, by two-thirds vote, convicted the judge of having committed the impeachable offense with which he was charged. Thus, a federal judge was to enjoy the benefit of judicial independence, i.e., being free from answerablility to Congress or the President for the judge's decision in a case coming before the federal courts.

4. The National Supremacy Clause:

The U.S. Constitution, like the New Jersey Plan and the Articles of Confederation, contained a National Supremacy Clause: The National Supremacy Clause in the U.S. Constitution -- Article VI, Paragraph 2 -- provided as follows:

    "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

The National Supremacy Clause made the U.S. Constitution, treaties, and all constitutionally valid laws of Congress the "supreme law of the land" in the U.S.A. The clause also declared that all judges on the state courts were bound by the supreme law, that the state courts had to recognize the supreme law and refuse to uphold state laws and policies that were contrary to the supreme law.

5. The Procedure for Amending the U.S. Constitution:

Article V of the U.S. Constitution provided for two methods of proposing amendments to the Constitution and two methods of ratifying amendments.

a. The Two Methods of Proposing Amendments:

    Proposal by Congress:

    Congress, by at least a two-thirds vote in each of the two chambers, proposes an amendment and submits it to the states.

    Proposal by a Federal Constitution Convention:

    At least two-thirds of the state legislature petition Congress to call a Federal Constitutional Convention to propose amendments.

    The Federal Convention, by majority vote, proposes one or more amendments and submits them to the states.

b. The Two Methods of Ratifying Amendments:

    Ratification by State Legislatures:

    Legislatures in at least three-fourths of the states ratify the amendment.

    Ratification by State Constitutional Conventions:

    Popularly elected state conventions in at least three-fourths of the states ratify the amendment.

When a proposed amendment is to be submitted to the states, Congress determines which of the two methods of ratification will be used by the states.

Either method of proposing an amendment can be used with either method of ratifying the amendment.

The Constitution does not assign the President a formal role to play in the amendatory process. The President has no formal sayso as to whether an amendment will be proposed or whether a proposed amendment will be ratified. Without formal-legal authority in the matter, the President has only his political influence, which he may or may not employ in an attempt to guide and shape deliberation and decision-making regarding the particular amendment in question.

        The Entrenched Clause. The very last clause in Article V provides that "no state, without its consent, shall be deprived of its equal suffrage in the U.S. Senate." This provision means that no state, without its approval or agreement, can be deprived of equal representation, or equal voting power, in the U.S Senate.

A proposed amendment changing the basis of representation in the Senate to something other than equal representation of the states in that chamber would have to be ratified by all the states. Anything less than unanimous ratification would cause the amendment to fail to be adopted.

Since any state with a comparatively small population would undoubtably object to its voting power in the Senate being reduced vis-a-vis other states, it is most unlikely that the last clause of Article V will ever be removed from the Constitution. For that reason, it is called the "Entrenched Clause."


The general scheme of American national government today differs from the original scheme in two important respects: (1) choice of members of the U.S. Senate and (2) how the Electoral College functions.

1. Selection of U.S. Senators:

Members of the Senate are no longer indirectly elected. The Senators are no longer chosen by their respective state legislatures.

Since ratification of the Seventeenth Amendment in 1913, the two U.S. Senators from each state have been elected by the voters of that state in statewide popular elections.

2. Operation of the Electoral College:

The Electoral College does not function in the manner it was designed to function--i.e., as a set of independent decisionmaking assemblies chosen by their respective state legislatures to elect the President of the U.S.A.

Almost from the beginning of federal elections under the U.S. Constitution, the state legislatures allowed direct popular election of presidential electors.

Beginning in the late 1820s, presidential electors, in voting for President, have largely reflected the wishes of a majority or plurality of the voters in their respective states. With the emergence of the major political parties' national nominating conventions during the Jacksonian Era of American politics, a strong political tradition developed in presidential elections, and. for the most part, presidential electors have adhered to this tradition in their voting behavior. That political tradition is as follows:

    When voting for President, a presidential elector will vote for the presidential candidate nominated by the national convention of the political party under whose label he was elected presidential elector for his state.

In the Framers' original design, there was to be only one popular, or "democratic," element in the national government. Only the U.S. House of Representatives was to be elected directly by the voters. Today, the Senate and the President are also popular elements in the national government.

Return to Top of Page

Return to the Beginning of the PSc. 201H Course


Go to Part Six,