We Must Restore Congress as the Predominant Branch of Government

The promise of democratic governance was stolen from the people. We must win it back.

Constitutional crisis: In 1877, Congress convened to settle the disputed presidential election between Samuel Tilden and Rutherford B. Hayes. (Three Lions / Hulton Archive / Getty Images)

You will hear no more disorienting or self-defeating a platitude uttered on Capitol Hill in this 250th year of the American journey, by politicians of either party, than the sixth-grade dogma that America has “three co-equal branches of government.”

That “co-equal” thing is confected nonsense. To begin with, if it is a real word at all, “co-equal” is a mediocre concoction whose lackadaisical users cannot even decide whether it should be hyphenated. By adding the gratuitous prefix to the indispensable stand-alone word, which the Declaration of Independence applied to people, “co-equal” establishes a confusing false equivalency among institutions, making it seem as if the framers wanted the three branches to be involved in a perpetual game of rock-paper-scissors with no apparent preference for actual progress toward a more perfect union.

The word “co-equal” or “coequal” appears nowhere in the Constitution and nowhere in the Bill of Rights. It makes a few appearances in The Federalist Papers to describe, for example, the relationship between the House of Representatives and the Senate or the national government and the states, but never to characterize the relationship among the three branches.

When used repetitively by judges, legislators, or pundits to characterize the relationship of Congress to the president and the Supreme Court, the “co-equal” trope first obscures and then surrenders the essential primacy of Congress as established and ordained in the first article of the Constitution. In Federalist No. 51, James Madison called Congress, the nation’s lawmaking institution, the “predominant” branch of national government and predicted that it would be the most powerful branch, indeed so powerful that it should be divided into the House and Senate to prevent it from overwhelming the rest of the government.

The whole history and structure of our Constitution supports Madison’s point. We had a revolution against a king and the system of monarchical government and hereditary rule. We replaced our quasi-religious faith in an absolute and unquestioned ruler—which produced unending corruption, inequality, folly, and war—with the process of representative government based on what Thomas Jefferson called “the consent of the governed.” The framers placed their faith in the political representatives of the people in a listening democracy, not the whims and fancies of one person.

Our preamble, which proclaims and exercises the sovereign power of the people to establish our Constitution, is a tour de force that should be taught in school in place of the degrading “co-equal” myth. It reads:

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We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Where does the power to proclaim these national purposes then go? It flows into the first sentence of Article I, which begins, “All legislative Powers herein granted shall be vested in a Congress of the United States.”

Article I unspools a jam-packed inventory of congressional powers, including to collect taxes and pay debts, appropriate and borrow money, regulate commerce domestically and internationally, establish the Postal Service, declare war and raise armies, call forth militias to stop insurrections and invasions, govern the federal district, and make all other laws “necessary and proper for carrying into Execution the foregoing Powers.”

Only then do you get to Article II and the executive power, which is carefully cabined to prevent monarchical dictatorship, corruption, and every other potential form of presidential betrayal of the people. Section 1 obligates the president to swear an oath to “preserve, protect and defend the Constitution.” It provides him an official salary but denies him the right to receive “any other Emolument from the United States.” Section 4 concludes by stating that the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” (If we were designed to be “co-equal,” then why do we in Congress have the right and power to impeach, try, convict, remove, and permanently disqualify the president, but he has no power to do the same to us?)

The primary function of the president is simply to “take Care that the Laws be faithfully executed,” not thwarted, diverted, blockaded, rewritten, or impounded. He is the commander in chief, not of the United States but “of the Army and Navy of the United States, and of the Milit…