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The first three articles set up the threefold separation of powers, said to have been modeled on Montesquieu's study, which on this point was incorrect, of the British government. In actuality this separation has been weakened by the granting of greater powers to the President and his administrative agencies, which now have legislative and judicial as well as executive functions.
1: Congress
Article 1 provides for the establishment of the bicameral Congress composed of the Senate and the House of Representatives. The various powers of the Congress and the respective houses, together with their methods of election, are enumerated in the article. The Seventeenth Amendment, passed in 1916, instituted the direct popular election of Senators and removed the ion from the state legislatures as had originally been provided in Article 1.
Section 4 of Article 1 gives the states power over the conduct of federal elections but permits the Congress to alter such regulations at any time. In 1842 the Congress imposed the district system on the United States. In 1962 the Supreme Court dealt with proper apportionment of election districts and in its decision in Baker v. Carr allowed voters to go into a federal court to force equitable representation in a state legislature. This decision was, however, based on the equal protection clause of the Fourteenth Amendment. Later, the court ruled (1964) that state legislative apportionment must reflect the one-person one-vote principle.
As a legislative body Congress has certain inherent powers. Among these are the power to investigate pursuant to legislative needs. Congressional investigations have led to a great many court decisions concerning the right of a witness before a Congressional committee to refuse to testify even when granted immunity from prosecution.
Section 8 of Article 1 lists the enumerated powers of the Congress. The clause of this section, the "commerce clause," which grants the Congress the right to "regulate commerce with foreign nations, and among the several States," has, in the 20th cent., been used as a strong argument for the expansion of government power. Since the historic case of Gibbons v. Ogden (1824), the commerce clause has been the battleground over which much of the struggle for and against increased federal regulation of private enterprise has been fought. Until the late 1930s Congress exercised its powers under the clause solely with reference to transportation. But after a series of dramatic reversals by the Supreme Court, Congress began to enter areas that had previously been controlled only by the states. The commerce clause is now the source of important peacetime powers of the national government and an important basis for the judicial review of state actions.
Besides its enumerated and inherent powers, the Congress has implied powers under Article 1 "to make all laws which shall be necessary and proper for carrying into execution" the enumerated or expressed powers. Sections 9 and 10 of Article 1 contain guarantees of the writ of habeas corpus, prohibit bills of attainder and ex post facto laws, and also improve certain limitations on state power.
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