Article. I.
SECTION. 1
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
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Excellent. This is good definitional legislation.
So far, so good: this is identical to the Westminster system in that it has a bicameral parliament.
SECTION. 2
Clause 1
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
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Two clauses in and already we have definitional problems. Art 1, Sect 1, Clause 1, says that there shall be “Electors in each State” but not what those Electors are.
Admittedly I come from a different tradition of how legislation is read but even under Common Law principles, a word shall take the normal definition of that word when it appears and coloured by the context that it appears in. In this case though, those Common Law principles are still not enough to inform someone what the term in question is supposed to mean.
Leaving that aside, the idea that the Members of the House of Representatives are chosen every second Year by the People, sounds like a good idea for small entities and may have even been sensible when the thirteen states in Congress were all there were, but when you have almost four times the number of states, the usefulness of this immediately grows out of its space. In fact by the 1890s, the framers of the Australian Constitution had already discovered in practice that two-year terms while seemingly a good idea because although one of the fundamental questions to ask people in power is "How can we get rid of you?" and two-year terms means that you can chuck people out of office reasonably often, what it does mean is that Members of the House are kind of in constant campaign mode.
To that point, the idea that you'd want Members of the House to be hindered from doing their job by the very mechanics of the job that they happen to be doing, seems to be a feature and not a bug by the framers of the US Constitution. The Continental Congress was so ineffective that it couldn't do very much at all; which is why it only lasted from 1775 until 1789.
Clause 2
No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
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Again, this is excellent.
What this says is that the House of Representatives shall have members who at very least have seen a little bit of the real world. Quite possibly and considering that this was written in 1788, a twenty-five year old person could very well be a veteran who had served in the Revolutionary War; they could be in their seventh or eighth year of service by this stage.
Also, the requirement that someone has been seven Years a Citizen of the United States is a good thing, as this means that such a person has had their lot hitched to the fortunes of the nation for quite some time. The requirement and the end of the clause that a prospective member be an Inhabitant of that State is also excellent. I do not know if such a thing as the 183-day residency test was a thing but what this does prevent is parachuting candidates in from across state borders. I imagine that in 1787 which was before the invention of any crystallised party system, that this was intended to try and make sure that a local member responded to local issues; which is pretty central to the ideal of representative government.
Clause 3 - Repealed
[Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.]
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This part of Clause 3 was repealed as part of the cleanup of the Constitution as a result of the Civil War. This is the first of many clauses and amendments of the US Constitution which tacitly admits that the notion that 'all men are created equal' as stated in the Declaration of Independence was an open lie (in addition to the many other lies contained therein). The idea that you would count the number of people who are eligible to vote and the apportion the number of seats according to a proportion of how many voters there were, is sound, but this is tempered with the unstated fact that the framers of the Constitution actively saw first peoples and slaves as either irrelevant or chattel goods and less than human. '3/5ths of a Person' is the wrangling by the States who possessed many slaves, to bolster their votes in the House and the Electoral College, in fear of having people whom they didn't consider as worthy of the vote being discounted for representative purposes.
Clause 3 - Continued
The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
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There are several consequences of this clause.
Firstly, that in order to make an Enumeration, there should be a census in place to make that possible.
Secondly, that such a census happen every ten years. However, there are no rules on how to conduct a census; nor does the Constitution itself mention any mechanism for funding said census.
Thirdly, that the Number of Representatives is dependent on the population (no less than 1 for every 30,000 people) and that whatever the circumstances, there should be at least one Representative per state. This was not important in 1787 but the framers knew that the states as they existed were all jammed up in the northeastern corner of the country and that Ladies Columbia, America, and Liberty, had a lot of destiny to manifest as they manifested the ever-living destiny out of the native peoples.
Thirdly continued - poor Rhode Island and Delaware. You only got one Representative each. I note that places like Wyoming and North Dakota which have massive amounts of space filled with squat-all, are still only entitle to one Representative at-large to day.
Clause 4
When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
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This clause might be small in length but it looms large in consequence. What this clause does is places the role of elections back onto the States. Now of itself that might sound all right as the United States is less of a Federation and more of a looser Union of States than places like Australia, or Canada, but what this means in practice is that for every single election, both general and special, as they are conducted by the several States, there is no central oversight.
The lack of central oversight in the running of elections means that there really isn't an election in for the Members and Senators in Congress, nor an election for the President but rather, fifty-two elections for the Members and Senators in Congress and fifty elections The ramifications for having fifty elections is that most of them are carried out by underfunded and rank amateur agencies. This is not helped by those same amateur election agencies running voting machines which are not exactly very secure. About the only concession to the security of elections in the United States is that because the system is really no system at all, it is really hard to hack fifty elections which are all chaotic in different ways.
Clause 5
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
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This makes sense that the members of the House of Representatives should choose it's own officers and also have the power to impeach same. In this respect, this is no different in principle to any other chamber in any Westminster system on the planet. Mostly Westminster parliaments have what are known as Standing Orders; particularly in the case of Australia, those Standing Orders are codified, which is something that the United States' House of Representatives must agree to at the beginning of every session.
Although Art 1, Sec 1, Clause 5 empowers the House of Representatives with the sole Power of Impeachment, it does not specify the object of that Impeachment. SCOTUS has long since declared that that Power of Impeachment extends to all offices of the US Government which are political appointments, which includes members of the House and Senate and the President and the Justices of the Supreme Court, but the material of this clause does not mention any of that at all.
What I find truly clumsy here, is that this is not an isolated example. The whole Constitution is like this. The whole realm of legal interpretation lives and dies upon the text contained thererin; where specificity is the soul of meaning. Otherwise (and this is where the United States suffers horribly) it is left to judges to 'interpret' the law. Of itself that sounds sensible but one of the scary ramifications of cases like Marbury v Madison (1803) where the courts took themselves the power to "say what the law is", is that the ten cent ordinary plain speaking English version of this is that the courts "make stuff up", and are subject to the whims and fads and fancies and fantasies of whomever is on the court at any given moment. That isn't a legal framework, that's a step away from patronage.
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