Inventing the American Legislative Power: Congress and the States After the Declaration

The Constitution of 1787 grants the Congress that it establishes a number of “legislative powers,” but although they gave the new federal legislature the old name, the Congress that adopted the Declaration of Independence did not presume to have legislative power; they lacked the power to tax, not being elected by the people, and they lacked for the most part the power to punish—even though in other respects they exercised sovereign power in the new United States. By contrast, the colonies-become-states were developing their newly independent legislative powers, often in significant ways. In Virginia, a committee of revisors—including Thomas Jefferson among its members—was appointed to review Virginia law, including common law, to ensure state law expunged feudal remnants and was consistent with a republican government. In Pennsylvania, the legislature invoked revolutionary principles in 1780 to enact the first statute abolishing slavery. Most of the states established new constitutions, gradually coming to distinguish the constitutive from the legislative power. In short, in the years following the Declaration of Independence Americans developed a complex understanding of the idea of legislative power. An original understanding of the phrase “legislative power” in the Constitution would have to consider what the phrase had come to mean.