534. CONGRESS CONSISTS OF TWO HOUSES.—The National legislature, or Congress, consists of a Senate or upper chamber, and a House of Representatives or lower chamber.

Several factors are responsible for this division of Congress into two houses. Undoubtedly the framers of the Constitution were influenced by the fact that the British Parliament and nearly all of the colonial legislatures consisted of two houses. A second factor is that in the opinion of the Fathers, a two-chambered legislature would allow each house to act as a check upon the other. Finally, the creation of a two-chambered legislature was necessary in order to reconcile the conflicting desires of the large and the small states. During the Constitutional Convention two opposing factions were brought together by the creation of a two-chambered legislature, in the upper house of which the states were to be represented equally, and in the lower house of which representation was to be on the basis of population.

A. THE SENATE

535. TERM AND QUALIFICATIONS OF SENATORS.—Two Senators are chosen from each state, regardless of population. The senatorial term is six years. In order to make the Senate a permanent body, membership is so arranged that one third of the Senators retire every two years. The Federal Constitution provides that Senators must be at least thirty years of age. In addition, a Senator must have been nine years a citizen of the United States, and he must be an inhabitant of the state from which he is chosen. The Senate alone is judge of the qualifications of its members.

With respect to the Senate, two disqualifications are imposed by the Federal Constitution. No one holding a Federal office may stand for election as Senator. Nor may any person become a Senator who has taken part in a rebellion against the United States after having taken an oath as a government officer to support the Constitution.

536. THE ELECTION OF SENATORS.—Previous to 1913 Senators were chosen by the various state legislatures, according to the provisions of the Federal Constitution. [Footnote: Article I, Section III.] This method proved unsatisfactory. Demoralizing political battles often took place in the state legislatures in the effort to select the states' Senators to Congress. Sometimes, even after a long struggle, no candidate was able to secure a majority, and a deadlock occurred. Thus, on the one hand, a state might be deprived of representation in the Senate for weeks or months, while, on the other hand, the attention of the legislature was so distracted by the senatorial struggle that purely state interests suffered. As the result of a long agitation growing out of these evils, the Federal Constitution was amended (1913) to permit the direct election of Senators.

Since 1913, then, any person may vote directly for Senator who, under the laws of his state, is qualified to vote for members of the more numerous branch of the state legislature. When, for any reason, a vacancy occurs in the representation of any state in the Senate, the Governor of the state issues a writ of election to fill such vacancy. Provided the state legislature grants the authority, the Governor also may appoint some person to serve as Senator until the vacancy is filled by popular election. Senators are generally reflected, and at the present time the average term of service is not six, but about twelve years.

537. PRIVILEGES AND IMMUNITIES OF SENATORS.—By the terms of the Constitution, Senators are paid out of the national treasury an amount to be determined by statute. At present both Senators and members of the House of Representatives receive $7500 a year, plus an allowance for travelling expenses, clerk hire, and stationery. Except in case of treason or breach of the peace, Senators and Representatives are immune to arrest during attendance at the sessions of their respective houses, and in going to and returning from the same. Both Senators and Representatives likewise enjoy freedom of speech and debate in their respective houses. In either chamber only the house itself may call members to account for their statements during the legislative session. No member of Congress may be prosecuted in the courts for libel or slander on account of statements made in Congress, or for the official publication of what he has said during the legislative session.

B. THE HOUSE or REPRESENTATIVES

538. MEMBERSHIP OF THE HOUSE.—Since the Senate is composed of two Senators from each state, its membership has been relatively stable. For a number of years there have been 96 Senators, two for each of the forty-eight states of the Union.

The membership of the House of Representatives, on the other hand, is steadily increasing, because based upon population. The number of Representatives to which any state is entitled depends upon its population as ascertained every ten years by a Federal census. After each census Congress determines the number of Representatives of which the House shall consist. The population of the United States is then divided by this number, and the quotient is taken as the ratio of representation. The population of each state is then divided by this ratio to discover the number of Representatives to which it is entitled. As a single exception to this rule, the Constitution provides that each state shall have at least one Representative regardless of population. Thus Nevada, Arizona, Wyoming, and Delaware are entitled to one Representative, whereas according to the above rule they would now be denied representation.

The present membership of the House of Representatives is 435.

539. WHO MAY VOTE FOR REPRESENTATIVES.—The Federal Constitution provides that members of the House of Representatives shall be chosen by persons who, in their respective states, are qualified to vote for members of the more numerous branch of the state legislature. Most male and female citizens over twenty-one years of age may vote for members of this more numerous branch, and hence for Representatives to Congress. In a number of states, however, educational, property and other qualifications are imposed. Certain types of criminals, the insane, and the otherwise defective are regularly excluded. [Footnote: For a fuller discussion of the suffrage, see Chapter XXXIII.]

540. QUALIFICATIONS OF REPRESENTATIVES.—The Federal Constitution declares that a Representative must be at least twenty-five years of age. He must have been a citizen for at least seven years, and at the time of his candidacy must also be an inhabitant of the state from which he is chosen. The House itself determines whether or not these qualifications have been met. No state may add to the constitutional qualifications, but through the force of custom a Representative is almost always a resident of the district which he is chosen to represent.

541. ELECTION OF REPRESENTATIVES.—The Federal Constitution permits the legislatures of the several states to regulate the time, manner and place of elections for its Representatives to Congress.

However, the Constitution reserves to Congress the right to alter these regulations at its discretion. This right has been exercised several times. Congressional statute has provided that Representatives shall be elected on the Tuesday following the first Monday in November of even-numbered years, and that the election shall be by written or printed ballot. It is also in accordance with Congressional statute that Representatives are selected on the district plan, one Representative being chosen from each Congressional district in the state. Congress has furthermore provided that these districts shall be of as nearly equal population as possible, and that they shall be composed of "compact and contiguous territory."

542. THE CONGRESSIONAL DISTRICT.—Subject to the above limitations the legislature of each state may determine the boundaries of its Congressional districts. The state legislature finds it necessary to redistrict the state if the decennial census shows that the population of the state has increased unequally in various sections, or in case the apportionment act of Congress changes the state's representation.

In many cases states have redistricted their territory for illegitimate reasons. The Federal provision with reference to contiguous territory has been loosely interpreted: in many cases territory is held to be contiguous if it touches the district at any point. The requirement that districts shall be of nearly equal population has often been disregarded altogether. Since the state legislature is controlled by the political party having a majority, the dominant party can arrange the district lines so as to secure a party majority in the greatest possible number of districts. This is done by concentrating the opposition votes in a few districts which would be hostile under any circumstances, and so grouping the remaining votes as to insure for the dominant party a majority in numerous districts.

543. GERRYMANDERING.—The result of this illegitimate redistricting has been to create districts of great irregularity. In 1812, when Elbridge Gerry was Governor of Massachusetts, the Republican party was in control of the state legislature. In districting the state so as to win for themselves as many districts as possible, the Republicans gave one of the Congressional districts a dragon-like appearance. To the suggestion of a famous painter that this looked like a salamander, a local wit replied that it was more nearly a Gerrymander. The term "gerrymander" has since continued to be used to designate this type of illegitimate redistricting. [Footnote: For the relation of gerrymandering to the problem of minority representation, see Chapter XXXV.]

544. TERM OF REPRESENTATIVES.—Representatives are elected for two years, the legal term commencing on the 4th of March following the election. Except in the case of a special session, the actual service of Representatives does not commence until the first Monday in December, thirteen months after election. Members are frequently reËlected, the average term being about four years. When for any reason a vacancy occurs in the representation from any state, the Governor may, on the authority of the Federal Constitution, issue a writ of election to fill the vacancy. A special election is then held in the district in which the vacancy has occurred, and the Representative so chosen serves for the remainder of the term. [Footnote: The privileges and immunities of Representatives are similar to those of Senators. See Section 537 of this chapter.]

C. THE POWERS OF CONGRESS

545. SPECIAL POWERS OF THE SENATE.—Of the three powers exercised exclusively by the Senate, the power to approve treaties is one of the most important. All treaties negotiated by the President must be approved by a two-thirds vote of the Senate before becoming law. The treaty may be approved or rejected as a whole, or it may be rejected in part, and additional articles recommended as amendments. If changed in form or content by the Senate the treaty does not become law until both the President and the foreign power have assented to the amendment or change.

In order to become valid, a large number of Presidential appointments must receive the approval of the Senate. [Footnote: See Chapter XL, Section 518.]

The Senate exercises a special judicial function in that it may sit as a court of impeachment for the trial of persons whom the House of Representatives has formally charged with treason, bribery, or other high crimes and misdemeanors. Excluding military and naval officers, who are tried by court-martial, and excluding also members of Congress, who are subject only to the rules of their respective houses, all Federal officers are subject to impeachment. Impeachment requires a two-thirds vote of the Senators present. Removal from office and disqualification to hold any office under the United States is the heaviest penalty which can be imposed upon an impeached official.

546. SPECIAL POWERS OF THE HOUSE.—The House likewise enjoys three special powers.

One of these is the right to elect a President of the United States in case no candidate has a majority of the electoral votes. This has happened only twice, in 1800, and again in 1824.

The Federal Constitution provides that all revenue bills must originate in the lower house. However, the Senate has come to share this power through its power to amend such bills.

The House of Representatives has the sole power to prefer charges of impeachment, that is to say, to present what may be called the indictment against the accused official. The case is then tried before the Senate, the House appointing a committee of its own members to act as the prosecuting agency.

547. GENERAL SURVEY OF THE POWERS OF CONGRESS.—The powers of Congress, i.e. the two houses acting together, are of two kinds: First, express powers, by which is meant those specifically enumerated in the Federal Constitution; and second, implied powers, by which is meant those which are incident to express powers and necessary to their execution. The foundation of the doctrine of implied powers is the constitutional clause [Footnote: Article I, Section VIII, of the Constitution.] which authorizes Congress to make all laws "necessary and proper" for carrying out the powers granted it by the Federal Constitution.

Grouping express and implied powers together, the more important powers of Congress may be summarized as follows:

Revenue and expenditures. Congress has the power to lay and collect taxes, duties, imports, and excises, and to appropriate money in order "to pay the debts and provide for the common defense and general welfare of the United States." But indirect taxes must be uniform throughout the United States, and all direct taxes, except income taxes, must be apportioned among the states according to population. A further limitation is that Congress may not tax exports from any state, nor levy upon the "necessary instrumentalities" of any state government.

National defense. Here the powers of Congress are practically unlimited, except by the constitutional provisions that the President shall be commander-in-chief, and that military appropriations shall not be made for more than two years. Congress can raise and support armies, create and maintain a navy, and provide for the organization and use of the state militia. Congress may also declare war, and make rules concerning captures on land and sea.

Foreign relations. Congress as a body has little direct control over foreign relations, though the Senate shares the treaty-making power with the President. But Congress has the power to create diplomatic and consular posts, as well as "to define and punish piracies and felonies committed on the high seas, and offences against the law of nations." Congress also exercises control over immigration and naturalization.

Economic interests. Congress may regulate commerce with foreign countries, among the several states, and with the Indian tribes. The exclusive power to coin money, and otherwise control the monetary system, is vested in Congress. Congress may make uniform laws on bankruptcy throughout the United States, and fix the standards of weights and measures. The establishment of post offices and post roads, and the protection of authors and inventors through legislation on patents and copyrights, are also functions of Congress.

Territories. Congress has the power to dispose of, and make all needful rules and regulations respecting, the territory or other property belonging to the United States. Congress likewise exercises exclusive control over the District of Columbia, and over all places purchased by the Federal government for the erection of forts, arsenals, and similar buildings. Congress also has the right to determine the admission to the Union of new states, and "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States."

Crime. In criminal matters the power of Congress is slight. For example, it cannot say what constitutes treason, since that crime is defined by the Constitution. However, Congress may provide for the punishment of counterfeiters and persons committing crimes on the high seas or offences against international law. It may also define certain crimes against Federal law, and prescribe penalties therefor.

Control over the judiciary. The judiciary is an independent branch of government, but Congress may determine the number of Supreme Court judges, fix their salaries within certain limits, and define their appellate jurisdiction. Congress may also determine the jurisdiction, and define the procedure, of the inferior Federal courts.

Implied powers. Last among the powers of Congress is the authority granted to it by the Constitution to make all laws which shall be deemed necessary and proper for carrying into execution the powers expressly granted to Congress by the Constitution. It is under the authority of this clause, that the implied powers of Congress have been so greatly expanded.

QUESTIONS ON THE TEXT

1. What influences are responsible for the fact that Congress is a two-chambered body?

2. Discuss the term and qualifications of Senators.

3. How were Senators elected prior to 1913? How are they elected at the present time?

4. What are the chief privileges and immunities of Senators?

5. Discuss the membership of the House of Representatives.

6. What is the nature of the Congressional district?

7. What are the qualifications for Representatives?

8. Who may vote for Representatives?

9. What is gerrymandering?

10. What three powers are exercised exclusively by the Senate?

11. What are the special powers of the House?

12. Under what two heads may the general powers of Congress be classified?

13. Outline briefly the chief powers of Congress.

REQUIRED READINGS

1. Beard, American Government and Politics, chapter xiii.

2. Guitteau, Government and Politics in the United States, chapters xxii and xxiii.

3. Munro, The Government of the United States, chapter xiv.

4. Reed, Form and Functions of American Government, chapter xxi.

QUESTIONS ON THE REQUIRED READINGS

1. What was the Connecticut compromise? (Guitteau, pages 248-249.)

2. Why does the Constitution provide that one third of the Senate shall retire every second year? (Reed, page 255.)

3. What criticism has been brought against the principle of the equal representation of states in the Senate? (Guitteau, page 249.)

4. Compare the growth of the Senate with the growth of the House of Representatives. (Reed, page 258.)

5. What is the relative position of the two houses of Congress? (Reed, pages 257-258.)

6. What is the right to "frank"? (Reed, page 258.)

7. What are the "supplementary" powers of Congress? (Munro, page 217.)

8. What are the powers of Congress with respect to weights and measures? (Beard, page 259.)

9. What was Jefferson's attitude toward the powers of Congress? (Munro, page 209.)

10. What is the scope of the implied powers of Congress? (Munro, page 214.)

TOPICS FOR INVESTIGATION AND REPORT

I

1. Congressional districts in your state.

2. The biography of one of the Senators representing your state in Congress.

3. Make a study of your Representatives in Congress, with respect to their age, length of service, political principles, and attitude toward such national questions as the tariff, military defense and taxation.

4. A brief comparison of Congress with your state legislature.

II

5. Place of the Senate in our National government. (Reinsch, Readings on American Federal Government, pages 127-134.)

6. The House of Representatives in the United States compared with the British House of Commons. (Kaye, Readings in Civil Government, pages 149-155.)

7. Gerrymandering. (Beard, Readings in American Government and Politics, pages 219-220; see any other standard text on American Government.)

8. The immunities of Congressmen. (Cleveland, Organized Democracy, chapter xxvii.)

9. Relation of the two houses of Congress. (Bryce, The American Commonwealth, vol. i, chapter xviii.)

10. The Senate as a judicial body. (Bryce, The American Commonwealth, vol. i, chapter x.)

11. Constitutional limitations on the powers of Congress. (Munro, The Government of the United States, chapter xx.)

12. Relation of Congress to the President. (Bryce, The American Commonwealth, vol. i, chapter xx.)

13. The war powers of Congress. (Any standard text on American government.)

14. The taxing power of Congress. (Any standard text on American government.)

15. Other financial powers of Congress. (Any standard text on American government.)

16. The power to regulate commerce. (Any standard text on American government. An excellent reference is Munro, The Government of the United States, chapter xvii.)

17. The postal powers of Congress. (Young, The New American Government and its Work, chapter xiii.)

18. The control of Congress over territories. (Kimball, The National Government of the United States, chapter xxii. See also any other standard work on American government.)

FOR CLASSROOM DISCUSSION

19. Direct versus indirect election of Senators.

20. To what extent, if to any, should Congressmen consider the needs of their local district as of more importance than the needs of the nation as a whole?

21. Should the interval between the election of Representatives and the meeting of Congress be shortened?

22. Should we retain equal representation of states in the Senate, or should this principle be discarded as "undemocratic"?