What happened to the Founders’ Congress?

Paul Ryan, Speaker of the House of Representatives and frequent critic of his party’s nominee during the previous election cycle, now communicates almost daily with the president.  

Donald Trump “feels strongly,” said Rep. Ryan in a recent interview, that the previous chief executive “stripped a lot of power away from the Constitution, away from the legislative branch of government.”

{mosads}While the Wisconsin Republican shares the New York billionaire’s concern about the tilted “balance of power,” a legislative leader pleading to the current executive doesn’t help make the Speaker’s case for restored congressional authority.  

If Ryan, no doubt genuine in his concern, actually wants to reclaim the power of his branch, he shouldn’t be asking The Donald.  He should be rallying his colleagues in Congress.

The most alarming contemporary feature of the government drafted by the Framers 230 years ago has been the self-imposed impotence of the Congress becoming more and more apparent over the course of every administration in the past 100 years. This diminishing congressional relevance is not only real but a systemic shift from the vision of those who created the Supreme law of the land.  

Our Founders would balk at the inability of the institution to recognize that their real power comes not from partisan squabbles but in truly representing, in James Madison’s words, “the people themselves.”

Prior to serving as a member of the House of Representatives and our Fourth President, Madison warned about the unwelcome “encroaching spirit” that may be exercised by one branch of government on the others.  The Virginian’s foresight in ringing alarm bells about the potential for a branch to routinely and dangerously step on its counterparts was pragmatic.  

Paul Ryan Says Trump Will Restore Constitution, Separation Of Powers https://t.co/c1dBsSynNC pic.twitter.com/MCNOrbvP1u

— The Daily Caller (@DailyCaller) December 5, 2016

But he could not predict the reality of a department choosing to surrender its own powers with near entirety to the enlarging influence of the remaining two.

The first sentence of Article I in the Constitution created the “Congress of the United States.”  The Framers in 1787 had invested most of the Philadelphia convention’s time — and more than half of the document’s 4,440 words — debating and shaping varying features of the branch.

The presidency was feared at the time of its inception as a creation that looked too much like the monarchy Americans had so recently fought a war to reject.  

Article II of the Constitution introduced us to an office where one person with minimal qualifications elected by a purposefully-detached body of electors scattered throughout the nation would have a role in passing laws, nominating judges with life tenure, negotiating treaties with foreign governments, issuing pardons and, perhaps most importantly, leading the military.

The federal courts, supreme and otherwise, would likewise lay claim to broad powers.  Their authority was found in the “cases” and “controversies” that would come before them.

No deliberation received more extensive attention than the discussion of the powers the Congress would wield.  Unlike the executive and the judiciary, the jurisdiction to make law was recognized as the most powerful tool a government body could possess.  

Debating and creating the laws the others branches would be bound by oath to respectively enforce and interpret as time would allow, the legislature was to be the vehicle of the federal government.  “In republican government,” Madison understood, “the legislative authority, necessarily, predominates.”

So what happened to the Founders’ Congress?

Today, an overwhelming majority of lawmakers on both sides of the aisle readily yield their constitutional powers to advance party interests at the expense of institutional protection.  Their discourse about constitutional issues have become cemented with the cost-benefit analysis found in individual party affiliations.  

We are left with a partisan legislature that our constitutional framers would find difficult to recognize at the time they were drafting the document and difficult to control by anything other than partisan motives.

The Congress ought to reclaim their rightful place in the legal order by abandoning their stance as either permanent obstacle or reliable rubber stamp to the president who represents either the opposing or affiliate political party.  The remedy could be found in budgetary control, legislative oversight, coalition building and the reemergence of one other tool in the constitutional arsenal: Impeachment.

How Democrats killed ‘process,’ in favor of ‘protest’ https://t.co/usidcJ4SAp

— Washington DC News (@washdcnews) January 6, 2017

Formally charging a government official in the House of Representatives and subsequently subjecting them to trial in the Senate wasn’t designed to be the only recourse to reign in members of the executive and judicial branches that have strayed from their constitutional intentions.  But it wasn’t designed to be ignored either.

The infrequency of a presidential or Supreme Court impeachment—two of 44 chief executives and one of 112 justices—and the even more rare conviction—no president or Supreme Court justice has ever been convicted of impeachment charges—shows the device is a rarely-used cudgel.  It should remain so.  But the fear that it could be used might be just as effective a remedy as its use.  

The option should give presidents who serve in the Oval Office and justices who serve our federal courts pause for thought before they reach too far beyond their constitutional restraints.

None of this is to say that Congress could become so powerful as to dominate the citizenry they were instructed to represent.  

“Where frequent elections end,” proclaimed an oft-stated warning of the revolutionary generation, “tyranny begins.”  Having the ability to evaluate those who serve us based on their performance puts the future of the Congress squarely in our hands — whether we want that responsibility or not.  

This power, entrusted to we, the people, should be a reminder that if we think the Congress is inadequate it isn’t the fault of the Framers and the framework of government they created.  It’s ours.

James Coll is an adjunct professor of American and Constitutional history at Hofstra University and the founder of ChangeNYS.org, a not-for-profit dedicated to promoting civic education and political reform in New York State, and a detective in a tactical and rescue unit of the New York City Police Department. He has written numerous articles on politics and history for POLITICO, Newsday, City-Journal, NY Daily News and the NY Post among others.

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