How The United States Congress Came to Be

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Podcast Transcript

When the 13 American colonies decided to form a proper constitution, the single largest question which confronted them was how their legislature would be organized. 

This question was really the crux of the entire constitutional convention, and if it couldn’t be resolved, it was likely there would be no constitution. 

Once it was resolved, Congress evolved with its own set of rules and traditions. Many of the key elements of the United States Congress are, in fact, not required by the constitution at all. 

Learn more about how the United States Congress came to be on this episode of Everything Everywhere Daily.

To understand how today’s United States congress came to be, we first have to look at what came before it. 

The first thing that could be considered a deliberative body of the thirteen original colonies would be the First Continental Congress held in 1774. The delegates met in Carpenter’s Hall in Philadelphia. 

This was held during the run-up to the Revolutionary War, and it consisted of 12 of the 13 colonies. The only colony which did not send representatives was Georgia, and that was because loyalists outnumbered patriots due to British protection from armed incursions from the south. 

The First Continental Congress was really more an airing of grievances than anything else. The biggest thing they passed was an agreement between the colonies to boycott British goods. 

They agreed to meet again the next year if their demands were not met, and they also sent invitations to other British colonies in North America, including Quebec, Georgia, East and West Florida, and Nova Scotia

The British did not respond to the colonist’s demands, so the next year, they met once again. The Second Continental Congress sat in session from 1775 to 1781, during the entirety of the American Revolution. 

If you hear anyone generically speak of the “continental congress,” odds are they are talking about the Second Continental Congress. 

This body met in the Pennsylvania State House in Philadelphia, which is known today as Independence Hall.

The second congress was much bolder than the first. They took the radical step of declaring independence and raising an army along with the funds to support it. 

The Second Continental Congress was replaced by the Confederation Congress. This was the legislature that acted under the Articles of Confederation. 

It was considered by everyone involved to be simply a continuation of the Second Continental Congress. The members were the same, the speaker was the same, and the way delegates were assigned was the same. 

It was in session from 1781 to 1788. 

With the revolution out of the way, there were several glaring problems that became obvious during the Confederation Congress. 

For starters, there was no executive or judicial branches of government. If the Confederation Congress passed something, there was no way to enforce it. 

They couldn’t effectively establish a currency, an army, raise funds or do much of anything. The Articles of Confederation defined the congress as a “league of friendship.”

The best example I can think of to explain the Confederation Congress would probably be the United Nations General Assembly. 

When it became obvious they needed something better, they held a Constitutional Convention in 1787. 

They had to solve a host of problems, some of which I’ve discussed in previous episodes, such as my episode on the Electoral College. 

The biggest single issue facing the delegates to the Constitutional Convention was how the legislature would be organized. This is why the structure of congress is listed under Article 1 of the constitution. Because it is the most important. 

Both Continental Congresses and the Confederation Congress voted by state. Each state could appoint multiple representatives to sit in congress, but when it came time to vote, each state received a single vote. 

Initially, the Continental Congresses were a coming together of separate colonies, so this sort of made sense. 

But now, they were all part of a single country.

Many of the delegates argued that if the United States was to be a single country, then representation in congress should be allocated by population. Every citizen in the country should receive equal representation, regardless of where they live. 

One of the first proposals was from Edmund Randolph of Virginia, who proposed a bicameral congress with membership in both houses allocated by population. 

Not surprisingly, Virginia was the largest state by a wide margin, with a population of almost 700,000 people. 

The Virginia Plan would have made Virginia the dominant state in congress.

Smaller states didn’t want their interests to be dominated by larger states.

William Paterson of New Jersey put forward a plan whereby there would be a unicameral legislature with each state receiving equal representation. 

Known as the New Jersey plan, it was rejected by a vote of the delegates, and the discussion moved on to the Virginia Plan.

This threatened to derail the entire convention. The smaller states threatened to walk out if the Virginia Plan was approved. 

The subject was sent to a committee with one representative from each state. 

The man who broke the log jam was the delegate from Connecticut, Roger Sherman. 

Sherman proposed a bicameral legislature with one house having membership apportioned by population and the other house giving each state an equal vote. 

This became known as the Great Compromise or the Connecticut Compromise. 

There were some modifications to the proposal which came out of the committee. In the original draft, the Senate would have operated just like the Confederate Congress, with each state delegation getting a single vote.

This was changed such that each state would be allotted two Senators, and each Senator would get a separate vote, opening the door to senators from the same state voting on opposite sides of a bill. 

Members of the House of Representatives would be elected directly by the people, whereas members of the Senate would be elected by members of the state legislatures. 

Each member of the House would serve a two-year term, and each Senator would serve a six-year term. 

There were two other things that were required to seal the deal. The first was that all spending bills had to originate in the House, not the Senate. 

The second was a compromise with the southern states, which would haunt the country for decades, the Three-fifths Compromise.

The origin of the Three-fifths Compromise actually started in the Confederation Congress and taxes. The idea was that each state would contribute taxes based on its population. At the time, northern states wanted slaves in the south to be counted to the tax burden on southern states would be higher.  The South objected and didn’t want slaves to count towards the population at all.

The compromise was that slaves would count as 3/5th of a person, but the proposal eventually failed. 

At the Constitutional Convention, the positions were reversed. Instead of taxation, the issue was now representation. Now the northern states didn’t want slaves counted at all, and the southern states did. 

The final compromise was the same as in the Confederation Congress, but this time it made its way into the constitution. 

This allowed Southern states to be allocated representatives at a higher rate than they otherwise would have, without having to give slaves any vote whatsoever. This also had implications for the electoral college.

Historians have gone back and recalculated how the 3/5th compromise shaped the elections that followed. If the 3/5th rule weren’t in place, American history would have played out very differently.

Jefferson, Madison, and Monroe probably wouldn’t have been elected president.

Many of the laws which extended and preserved slavery, such as the Missouri Compromise and the Kansas-Nebraska Act, would never have been passed.

But for the 3/5th rule, slavery probably would have been abolished sooner, or the civil war would have started earlier. 

Only two positions were outlined for either house in the constitution. The President Pro Tempore in the Senate, who was to preside when the Vice-President was not present, and the Speaker of the House of Representatives. 

Beyond these two figures, each house has an enormous amount of leeway in how it can handle its affairs. 

The rules and traditions of congress began when the First Congress assembled on March 4, 1789. 

One of the first things they did was create standing committees. Two of the first committees in the House of Representatives still exist today. The Ways and Means Committee, which oversees spending, and the rules committee, which sets the rules of the House. 

Committees are generally of two types: standing committees and select committees. Standing committees are permanent and select committees are temporary. 

Committee appointments are coveted positions for members of Congress. Over time the committee structure of Congress became unwieldy, and it was overhauled after the Second World War by the Legislative Reorganization Act of 1946. 

Legislative Reorganization Act overhauled the committee structure, providing set boundaries for which committee was in charge of what, and merging many standing committees to reduce the number. 

One of the defining features of the modern Congress are majority and minority leaders for each house. This practice actually only began in 1899. 

The appointment of party whips was also established around this same time. The role of a whip is to enforce party discipline on members when voting. The role actually initially came from parliamentary democracies, as in the UK

The restriction on apportionment in the Constitution was that the ratio could be no greater than one representative for every 30,000 people, with each state getting a minimum of one representative.

Throughout the 19th century, the number of members of the House of Representatives increased as the population of the country increased.  This stopped in 1911 in preparation for New Mexico’s admission to the union when the number was fixed at 435. 

It briefly went to 437 when Alaska and Hawaii were admitted but then went back down.

There is nothing magic about the number 435. In fact, many people think that given the enormous growth of the US population over the last 100 years, the size of the House should be increased. 

If the original apportionment size when the constitution was adopted were still in place, the House of Representatives would now have over 10,000 members. 

While 10,000 would be far too unwieldy, one proposal which has been floated is called the cube root rule. The number of representatives in the house would be the cube root of the total population.  Using this rule, the current size of the house would be 691 members or one representative for every 478,000 people. 

Using the cube root rule, the size of the house would go up as the population increased, but at an ever-slowing rate. If the population were to reach 400 million, then the size of the House would only be 736.  With a billion people, there would be 1,000 representatives. 

Another important function that is not set in the constitution is apportionment and the creation of districts. 

The number of representatives given to each state is determined by the census, which is conducted every ten years. This can lead to some odd differences in district size.

Because each state gets a minimum of one representative, the largest and smallest congressional district often comes from a state that has, or recently had, a single representative. 

For example, the largest congressional district after the 2010 census was the Montant at-large district which had 994,416 people.

The  smallest district size was Rhode Island 1st, with 526,283 people.

The reason for both of these is that Montana was just under the threshold to get a second representative in 2010, and Rhode Island was just over it. 

As of the 2020 census, Montana will now get a second district, and their average will drop in half, probably making them go from the largest district to the smallest. 

While the number of representatives each state gets is determined by Congress, how the districts are drawn within each state is up to the states themselves. 

This often results in the practice of gerrymandering, where the party in control can create district lines to maximize the number of districts they will likely win. 

The practice and history of gerrymandering are interesting enough to warrant their own episode. 

One other interesting thing to note about Congressional districts is that the representative doesn’t have to legally live in the district from which they were elected. They only have to reside in the state. This almost never happens, but that is what the rule is.

One final thing is the titles used for members of Congress. A member of the House of Representatives is usually called a representative, congressman, or congresswoman. A senator is just a senator. 

Some members of Congress have taken to using the initials MC after their names, similar to how representatives in parliamentary systems are known as MPs. This hasn’t really caught on, but if it does, I would like to announce my support for MC Hammer for Congress. That way, he would be known as MC Hammer MC. 

The United States Congress is a unique legislative body. It was created out of a set of circumstances that no other country has ever found itself in, and the result is an institution unlike any other on Earth. 


The executive producer is Darcy Adams.

The associate producers are Thor Thomsen and Peter Bennett.

Today’s review comes from listener docjkm over at Apple Podcasts in the United States. They write:

This is the one

This is the podcast you’ve been looking for. A daily dose of interesting and sometimes provocative facts in a format that is perfect. Occasional mistakes do not detract from the value of diverse and almost always interesting subject matter. The work is evident, and much appreciated.

Full rec!

Thanks, docjkm!  If you ever find an error in any episode, feel free to contact me. I’m more than happy to correct any mistakes, as I did during the great odd number cylinder incident, or my Bill Buckner brain fart. 

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