The Myth of “Coequal” Branches of the Federal Government

The popular myth, retold almost daily by members of Congress, that the Constitution established three separate, but equal branches, of government has no basis in fact. The true intent of the Framers was for the Congress to be supreme because it is the nature of representative government that the most representative branch should be most powerful.

The Myth of Coequal Branches: Restoring the Constitution’s Separation of Functions, by David J. Siemers (242 pages, University of Missouri, 2018)

In 1959, James Burnham, in Congress and the American Tradition, pretty much laid out reasons for the decline of Congressional power and the rise of an imperial Executive. David Siemers, a professor of political science, makes the same case, but explains it in a way that bean counters in Departments of Political Science make their arguments.

There is much more to this story than Dr. Siemers is interested in telling.

If the lack today of talented members of the Congress of the United States can be explained, it may be traced to the notion that the Constitution is composed of three coequal branches, but also to the 17th Amendment, ratified in 1913.

In 1787 as Delegates to the convention in Philadelphia prepared to meet, it was generally agreed that the government that would work in America was not the British model. The model they followed was the one practiced by the American colonies—the model of legislative supremacy.

The outline of the new government first presented on May 19, 1787 by Edmund Randolph is known as “the Virginia Plan.” Randolph resolved that the new government should consist of a National Legislature, Executive, and Judiciary. The National Legislature was to consist of two branches; the lower House was to be elected by the people of the States; the upper by the lower branch. The National Executive was to be chosen by the National Legislature. Both the Executive and the Judiciary would constitute a Council of Revision to examine the acts of the Legislature, with a veto over the acts of the Legislature.

The only aspect of Randolph’s plan that could be interpreted to limit the Legislature was Resolution 8 that provided for a Council of Revision. The provision for a Council of Revision as an aspect of the new government was ultimately defeated, not once, but three times, on June 6, July 21, and August 19. James Madison was the principal Delegate behind this attempt to check the Legislature. Madison was persuaded that if a revolution were to occur in America, it would be perpetrated by the Congress. Instead, he vigorously supported the unsuccessful attempt to establish a Council of Revision as a part of the new Constitution. Thus, despite Madison’s efforts, the institutional structure originally established by the Constitution left a supreme and almost unchecked legislature.

To the Framers of the Constitution, the three branches of the national government were unequal—not equal. Of the three branches, the legislature was supreme, the Executive was more powerful than the Judiciary, but, for that reason the Framers suspected that if any mischief were to occur, it would probably occur in the Executive.

The popular myth, retold almost daily by members of Congress, that the Constitution established three separate, but equal branches, of government has no basis in fact. The true intent of the Framers was for the Congress to be supreme because it is the nature of representative government that the most representative branch should be most powerful.

That was the view of the majority of Delegates at the Philadelphia Convention and was summarized by remarks at the Convention on Monday, June 4, of Gunning Bedford, Jr. of Delaware who said that absolutely no check upon the Legislature should be tolerated. “The Representatives of the people were the best Judges of what was for their interest, and ought to be under no external control whatever.”

Little known today, Bedford was, from 1784 to 1789, attorney general of Delaware and an active participant in the debates at the Philadelphia Convention.

How then did the false notion of coequal branches come about, and why should we be concerned?

That is what Professor David Siemers attempts, as he explains “how Congress might reestablish the separation of functions and, with it, regain the position as the ‘first branch.’ ” In other words, Dr. Siemers is not a “dry as dust” academic, but is offended by confusion about the original design of the Constitution.

That is to be admired and distinguishes Dr. Siemers from a crowd of academic “complainers” who fault the Constitution for failing to meet the high standards of the many Politically Correct voices that populate the crowd of academicians who populate our colleges and universities today. But, though Dr. Siemers does an excellent job demonstrating who is responsible for this confusion, he is, at best, tentative about the reasons this confusion began—sometime around 1910.

Before then, two statesmen rose in support of Congressional supremacy: John Calhoun and Henry Clay.

Calhoun, responded to an assertion by President Jackson in 1834 that the President and Congress were coequal by denying the legitimacy of such an assertion. President Jackson, it will be remembered by students of Alexis de Tocqueville, was “a man of violent temper and mediocre talents.” Tocqueville writes of Jackson that

no one circumstance in the whole course of his career ever proved that he is qualified to govern a free people, and indeed the majority of the enlightened classes of the Union has always been opposed to him.

A second statesman, Henry Clay, Dr. Siemers writes, “argued most strenuously for congressional power . . . and his speeches frequently enumerate his party’s belief in congressional power.”

Congress should be able to override vetoes by a simple majority vote, cabinet officers should consider themselves under the direction of the law and the Constitution more than under the personal direction of the president, congressional approval should be required for the dismissal of administrative officers, the president may not change the meaning of a law through interpretation, and control of the Treasury should be in the hands of Congress.

Well said, but then when did a change of mind occur?

Here Dr. Siemers points his accusing finger at our law schools, but fails to relate their advocacy of a false myth to the Progressives who began to have influence at the turn of the 19th century.

As a student of the Debates in the Constitutional Convention and the debates in the State Ratification Conventions, Dr. Siemers surely resents law professors who never studied our Constitutional history.

He writes, “By the late 1910s, the idea of coequal branches was ‘in the language’ at least among young lawyers, some of whom were undoubtedly working in politics and aspiring to high office. The idea was ripe for appropriation by those who believed that coequal branches would be beneficial.”

This was the point at which Dr. Siemers might have placed this confusion in some political and philosophic context, After all, this was the heyday of the Progressives who successfully amended the Constitution in 1913 to provide direct election of members of the U.S. Senate.

Dr. Siemers makes no reference to that!

With the Great Depression and election of President Franklin Roosevelt and his “New Deal,” Dr. Siemers writes, “it was common to describe the branches of government as coequal.”

As I, too, studied our Constitutional history and once or twice taught a course on the Constitutional Convention, William Shakespeare’s sentiment expressed in Henry VI, Part 2, Act IV, Scene 2 is mine as well.

Our attorneys-at-law have made themselves into a “New Class” that makes opposition to tradition, religious faith and the mores that sustain our political order subservient to legal procedures. “Procedure” is, after all, their business, but that is being used to assert the power of a New Class to reorganize how we understand our Constitutional order.

Though Professor Siemers does not explain why this has occurred, he does don his “bean counter” hat and compiles a list of every instance of use of the term “coequal branch” in Congressional speeches and hearings from pre-1850 to the 2010s. He finds that use of that term reaches its apogee from the 1960s through the 2010s for a total of 1,494 times that the term appears!

As if to affirm that the Republican Party is “the Stupid Party,” Dr. Siemers traces the introduction of coequal branches to a “conservative,” California Senator William Knowland, who should have known better. By Dr. Siemer’s count, Knowland used the term “coequal branches” thirty-nine times.

Knowland was followed by Richard Nixon who became “the primary backer and publicist of coequality in the 1970s.” Even Wisconsin conservative Congressman Melvin Laird continued the confusion!

Only one lone Republican Congressman from Iowa, Steve King, of all people, disputed that the branches were coequal. Cong. King, an outlier in “the Party of Lincoln,” was stripped of his committee assignments after he questioned why the terms “white nationalist” and “white supremacist” were considered offensive.

Dr. Siemers sees a better advocate, and hope in resurgence of Congressional power, in Sen. Mike Lee (R-UT) who in 2016 launched something called the “Article I Project.”

Its backers want Congress to more directly control government spending, end legislative deference to agency-made regulations, and end the use of ‘legislative cliffs’ in budgeting that yields forced appropriations by emergency. Their view is that ‘the Founders made the Congress the ‘First Branch’ of the federal government–the most powerful and the most accountable.’

Well said, Sen. Mike Lee!

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