Article III of the Constitution

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- [Narrator] Hi, this is
Kim from Khan Academy,

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and today I'm learning
more about Article III

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of the Constitution.

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Article III establishes the
judicial branch of government,

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including the Supreme Court,
whose job is to interpret

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the laws of the United States.

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To learn more about Article
III and the judicial branch,

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I asked two experts to give
me some more information.

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Jeff Rosen is the President and CEO

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of the National Constitution Center,

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and he's written
extensively about the courts

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and the Supreme Court in particular.

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Richard Garnett is a professor
of law and political science

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at the University of
Notre Dame School of Law.

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Jeff, can you tell us a little
bit about the Framer's vision

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for the judicial branch?

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How much power did they intend

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for the judicial branch to have?

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- [Jeff] Let's start by reading the text.

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That's always the best place to start.

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The text of Article III, the
very first sentence says,

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"The judicial Power of the United States,

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"shall be vested in one supreme Court,

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"and in such inferior
Courts as Congress may

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"from time to time establish."

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The Framers expected that we
would have a Supreme Court

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and that would be separate
from the legislature

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and the president, but
it was up for Congress

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to decide what other federal
courts we'd have, if any.

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And it's so interesting that the Framers

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are so focused on a
system where state courts

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are the main interaction that people have

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with the judicial system.

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They didn't even require
Congress to set up

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inferior federal courts at all.

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- [Kim] So what does Article III tell us

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about how the judicial branch
is supposed to be structured?

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- [Richard] Well, it
doesn't say a whole lot.

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It's interesting.

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So some people are surprised
when you actually read

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the text of Article III.

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It sets up the Supreme
Court, and it says that all

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of the federal judicial power is gonna be

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in that Supreme Court, but
it doesn't tell us anything

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about, say, courts of
appeals or trial courts.

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It clearly envisions that
Congress is gonna create some,

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but it really did leave
it to Congress to decide

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how to structure the judicial system.

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- [Kim] So what are some
of the ways that the role

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of the Supreme Court
has changed over time?

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- [Richard] I think it's fair to say that

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there's a lot more federal
law than there used to be,

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and so there are more
questions that are potentially

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questions for the Supreme
Court than there used to be.

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I mean, if you think of the
country's early history,

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most of the legal action was in the states

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and the state courts and
the state legislatures.

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There wasn't that much, there
weren't that many questions

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for the Supreme Court to answer.

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As the federal government
grows, as federal law expands,

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that creates more work
for the Supreme Court.

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What does equal protection mean?

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What does due process mean?

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What's the balance between
the freedom of speech

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on the one hand and intellectual
property on the other say?

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These are questions that
the Founders might not

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have been able to envision
being judicial questions.

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- [Jeff] Alexander
Hamilton, Federalist 78,

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famously said that the
judiciary would be the least

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dangerous branch because it
had neither purse nor sword.

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The Framers thought the
Congress would be the most

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dangerous branch because it
had the most enumerated powers.

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The presidency second,

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'cause limited but constrained powers,

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and judiciary the least dangerous

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because it didn't have the
army and it had no money

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and all it could do was issue judgments

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and hope that they would be
accepted by the other branches.

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- [Kim] So say that I'm
a Supreme Court justice.

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Good work, me.

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(laughing)

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And a case comes before
me and it's up to me now

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to interpret the
Constitution in such a way

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that I can answer questions
about this certain case.

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So what would be some of
the tools that I could use

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to help me in my interpretation?

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- [Richard] Well, there's obviously deep

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and fascinating disagreements among people

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about how exactly courts should do that,

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but one place where you could start,

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and I think there'd be common ground here,

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is that all justices believe
that it's important to ask,

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how has the Supreme
Court answered questions

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like this in the past?

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So the first place you would look would be

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to the court's own precedents.

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Has the court answered
questions like this before?

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And if so, what did the court say?

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Because there is a strong
sense that the rule of law

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needs predictability and consistency,

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and so courts really do make an effort

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to have their rulings
be consistent over time.

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- [Jeff] You might also be interested in

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empirical facts.

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What would be the effect

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of a particular decision on the country?

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You might also be interested
in theories of natural law,

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which we talked about in
discussing the 9th Amendment.

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Even if the right being
asserted isn't written down

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in the Constitution, is
there some case that it

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is rooted in the history
and tradition of our law

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and that it might come from
sources like God or nature

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and not government?

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Generally, judges have been
reluctant to enforce rights,

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natural rights, that don't
have a positive foundation.

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A positive right is a
right that's written down

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or codified in some explicit way.

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A natural right comes from God or nature.

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But in practice, most of the
natural rights have tended

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to be codified in history or tradition

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and in state constitutions or state laws,

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so those would be other
places you'd look too.

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But what's really important
for viewers to remember,

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and I want all of you guys
to try to do this yourselves,

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try this yourselves at home,

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separate your constitutional conclusions

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from your political conclusions.

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When you're evaluating a law, don't ask,

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do I think that this form of,
say, gun control regulation

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is a good or bad idea as a policy matter.

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Ask yourself, do I think
the 2nd Amendment allows

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or prohibits it, and
entertain the possibility

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that your constitutional
conclusions might diverge

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from your political conclusions.

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You might think gun
control is a good idea,

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but the 2nd Amendment prohibits it,

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or it's a bad idea but the
Constitution allows it.

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And that basic separation of political

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and constitutional conclusions is central

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to Hamilton's very theory
of judicial review,

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because that's what stops
judges from being policy makers

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in robes and ensures that
they're preferring the will

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of the people expressed
in the Constitution

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to those of the legislatures,

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which represent fallible policy views.

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- [Kim] As we learned from early cases

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like Marbury versus Madison
and then even later cases

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like Brown versus Board of Education,

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the Supreme Court can render decisions

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that then no one enforces.

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So how has the Supreme
Court avoided becoming

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kind of a moot point?

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- [Richard] Yeah, there's a story,

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and it might be apocryphal,
but it's a good story anyway,

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that President Andrew Jackson said,

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after the Supreme Court issued an opinion

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that he didn't like, he said,

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"The Supreme Court has issued its opinion,

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"now let them enforce it."

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Basically making the point
that all they could do

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was issue an opinion
and it was up to others

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to decide to comply.

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I think American culture,
and this is something for us

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to be grateful for, it's been
built up over a long time.

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It has generally been that
we have a strong norm,

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that elected officials
should follow the law

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as it's been declared
by the federal courts.

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Now there've been, as
you know, controversies

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about court decisions
throughout our history,

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whether it was the Dred Scott case,

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which President Lincoln
hated, or, as you said,

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Brown versus Board, which was resisted

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by some Southern officials
after it came down.

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The court's ability to
get its judgments enforced

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depends on its credibility
and on America's culture

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of respecting the rule of law.

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If the court's credibility goes away,

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or if Americans stop
respecting the rule of law,

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then the court's judgments
will have less force.

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- [Kim] So the Supreme
Court exercises the power

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of judicial review, which
means that it reviews

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the actions of the executive branch

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and the legislative branch

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and can declare those
actions unconstitutional.

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Do you think the Framers
intended for the court

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to use that power to check the
other branches of government?

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- [Richard] Most scholars
would agree that it was widely

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believed that the Supreme
Court would have the power

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to review the acts of both
other federal officials

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and of state governments
and to decide whether or not

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those acts were consistent
with the Constitution.

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There was a lotta
disagreement about how excited

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people were about that power, and again,

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some people worried that the
Supreme Court might abuse

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its power of judicial review.

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But the basic idea that it's
one of the jobs of a court

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to make sure that the
acts of other officials

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are constitutional, are
consistent with the written

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Constitution, that idea
preexisted Marbury.

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That idea was clearly in
the minds of the Founders

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when they created the Supreme Court.

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- [Jeff] I'm happy to say yes,

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the Framers did intend for the courts

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to have the power of judicial review.

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I'm confident of that
both because the power

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was exercised by courts
before and after the framing,

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and also because Alexander Hamilton,

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in Federalist 78, so
explicitly puts the case

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for judicial review.

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It's such a shame that
in that great musical

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we've got the room where it happened

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but we don't have the judicial
review where it happened,

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because Hamilton would be a great song

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about why Hamilton thought
that judicial review followed

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logically from the very
theory of popular sovereignty.

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- [Richard] It really isn't
the job of unelected judges

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to try to update and
improve the Constitution

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that the people ratified.

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In some cases, this isn't
much of a challenge,

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but in others, say, in cases having to do

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with the freedom of speech
or in cases having to do

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with the war powers and so on,

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it can be a challenge.

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It can be a challenge to
figure out what exactly

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the provision meant to
those who ratified it,

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and it can be a challenge
to decide whether,

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if at all, the original
meaning needs to be updated

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in light of more current events.

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- [Jeff] Now, there is,
of course, much to say

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in response to Hamilton,
and we could have a whole

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constitutional law course on
the responses to Hamilton.

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His very theory of
judicial review is premised

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on the idea that the
Constitution represents the will

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of the people more
emblematically or profoundly

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or fundamentally than
those of ordinary laws.

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The obvious first response is,

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"Hey, how can you say that
the will of a bunch of dead

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"white guys from 1787

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"really represents the will
of we, the people of today,

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"more accurately than a
law that Congress passes?"

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The answer to the objection is, well,

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it's because the Constitution was passed

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by a special procedure.

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It was unusually deliberative.

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It took a long time to propose,

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and it didn't gain the
status of supreme law

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until it was ratified
by special conventions

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that were specially
called for the purpose.

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It was that long process of deliberation

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that gives that
constitutional text the right

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to speak in we the people's name.

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- [Kim] How could the
legislative or executive branch

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check the power of the Supreme Court?

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- [Richard] Yeah, our
Constitution has a number

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of these interesting checks
and balances features, right?

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So the three branches are distinct,

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but there's various ways in which they get

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into each other's business.

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The President can veto a law.

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The President appoints
justices, but of course,

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the Senate has the say about
whether to confirm them,

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and so on.

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So the branches are separate,
but they are related

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and they check each other.

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- [Jeff] Well, we remember
from the text of Article III

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that the Constitution authorizes Congress

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to set up such inferior courts as it may,

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from time to time, choose
to ordain and establish.

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Congress didn't have to
create inferior courts.

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It can create them, it can change them.

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There's a debate right now

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about whether the Ninth U.S.
Circuit Court of Appeals,

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which occupies much of the west,

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should be split up.

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Congress can split it up if it wants.

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Congress can change the number
of Supreme Court justices.

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There were originally six justices

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and the number went up and down

00:12:13.590 --> 00:12:16.428
before settling around nine,

00:12:16.428 --> 00:12:18.910
or rather settling at nine,

00:12:18.910 --> 00:12:21.920
in the 1860's.

00:12:21.920 --> 00:12:26.170
So Congress could change
the number of justices

00:12:26.170 --> 00:12:30.320
to punish a president
on political grounds.

00:12:30.320 --> 00:12:33.720
When Thomas Jefferson was
coming in after the election

00:12:33.720 --> 00:12:36.590
of 1800, the outgoing Federalist
Congress was so determined

00:12:36.590 --> 00:12:39.340
to punish him that they changed the size

00:12:39.340 --> 00:12:41.070
of the Supreme Court to deny him the right

00:12:41.070 --> 00:12:43.170
to make any appointments.

00:12:43.170 --> 00:12:45.240
- [Richard] The other
branches can check the court

00:12:45.240 --> 00:12:46.100
in a number of ways.

00:12:46.100 --> 00:12:49.580
So the most dramatic would
be you can impeach a justice

00:12:49.580 --> 00:12:50.810
for high crimes and misdemeanors.

00:12:50.810 --> 00:12:52.340
That doesn't happen very often.

00:12:52.340 --> 00:12:55.790
Another way, which doesn't
happen all that often, but could,

00:12:55.790 --> 00:12:57.780
is Congress can

00:12:58.670 --> 00:13:02.330
check the court by, for
example, not funding it,

00:13:02.330 --> 00:13:06.438
or by limiting the issues that
the court is allowed to hear.

00:13:06.438 --> 00:13:09.410
Congress can control what's called

00:13:09.410 --> 00:13:11.140
the jurisdiction of the court.

00:13:11.140 --> 00:13:12.870
The court only gets to
answer the questions

00:13:12.870 --> 00:13:15.310
that Congress gives it
the power to answer.

00:13:15.310 --> 00:13:17.630
Now again, Congress is
reluctant to do that,

00:13:17.630 --> 00:13:19.710
but it has sometimes in the past,

00:13:19.710 --> 00:13:22.860
and it could if Congress
thought it were necessary.

00:13:22.860 --> 00:13:25.280
- [Jeff] Congress can engage
in jurisdiction stripping.

00:13:25.280 --> 00:13:28.433
There's only a small category of cases

00:13:28.433 --> 00:13:32.460
that the Supreme Court
is required to hear.

00:13:32.460 --> 00:13:35.060
But broadly, the court
has a broad discretion

00:13:35.060 --> 00:13:36.310
over its docket.

00:13:36.310 --> 00:13:38.050
If Congress wanted to
say, "Hey, Supreme Court,

00:13:38.050 --> 00:13:41.930
"you're not allowed to hear
any cases involving abortion,"

00:13:41.930 --> 00:13:44.640
for example, it arguably could do that,

00:13:44.640 --> 00:13:46.620
although such a law might be
constitutionally challenged.

00:13:46.620 --> 00:13:49.040
I remember being in law
school just kind of indignant

00:13:49.040 --> 00:13:52.110
at the idea that Congress
could violate the separation

00:13:52.110 --> 00:13:53.210
of powers so flagrantly.

00:13:53.210 --> 00:13:56.620
My great law professor
Akhil Amar convinced me

00:13:56.620 --> 00:13:59.390
that this had been done
throughout American history,

00:13:59.390 --> 00:14:01.510
that before, during the Civil War,

00:14:01.510 --> 00:14:03.750
Congress deprived the court of the right

00:14:03.750 --> 00:14:07.420
to hear certain cases
involving national security

00:14:07.420 --> 00:14:08.800
and so forth.

00:14:08.800 --> 00:14:12.240
So Congress can, if it chooses,
exempt certain categories

00:14:12.240 --> 00:14:14.610
of cases, those that are not
in the original jurisdiction

00:14:14.610 --> 00:14:16.440
of the court, from being heard.

00:14:17.400 --> 00:14:19.770
There's also the question
of whether Congress

00:14:19.770 --> 00:14:23.160
can impose term limits for
Supreme Court justices.

00:14:23.160 --> 00:14:28.160
There's a proposal floating
about to have 18-year terms

00:14:28.160 --> 00:14:30.670
for the justices and get
each president the right

00:14:30.670 --> 00:14:33.840
to appoint two justices,
and have justices retire

00:14:33.840 --> 00:14:35.470
after 18-year terms.

00:14:35.470 --> 00:14:37.067
There's a vigorous debate about
whether that could be done

00:14:37.067 --> 00:14:39.910
by an ordinary statute, or
whether it would require

00:14:39.910 --> 00:14:41.220
a constitutional amendment.

00:14:41.220 --> 00:14:44.720
- [Kim] Well, if you had to
say there was one big take away

00:14:44.720 --> 00:14:47.460
about Article III that
students should remember,

00:14:47.460 --> 00:14:48.950
what might it be?

00:14:48.950 --> 00:14:52.450
- [Jeff] That when courts strike down laws

00:14:52.450 --> 00:14:55.230
as unconstitutional, they're
not thwarting the will

00:14:55.230 --> 00:14:57.420
of the people, they're
supposed to be supporting it.

00:14:57.420 --> 00:15:00.520
Because the Constitution
represents the will of the people,

00:15:00.520 --> 00:15:03.883
ordinary laws represent the
will of our representatives.

00:15:03.883 --> 00:15:06.180
The Constitution is supreme law,

00:15:06.180 --> 00:15:10.490
so that's why it trumps
ordinary legislation.

00:15:10.490 --> 00:15:12.530
- [Richard] You know,
Americans of good faith

00:15:12.530 --> 00:15:14.080
and good reason have been disagreeing

00:15:14.080 --> 00:15:16.360
about the court's role for the long time.

00:15:16.360 --> 00:15:20.530
I think a challenge for
the court is finding

00:15:20.530 --> 00:15:24.800
the right balance between
asserting its independence

00:15:24.800 --> 00:15:27.550
and exercising judicial
review on the one hand,

00:15:27.550 --> 00:15:30.120
but on the other, being
mindful of the fact

00:15:30.120 --> 00:15:32.160
that it is undemocratic.

00:15:32.160 --> 00:15:35.640
The judicial review sometimes
involves setting aside

00:15:35.640 --> 00:15:37.360
what the people have decided they want.

00:15:37.360 --> 00:15:40.360
That's an awesome power, and
it shouldn't be overused.

00:15:40.360 --> 00:15:42.810
So the court, from time
to time in history,

00:15:42.810 --> 00:15:47.070
has been criticized for,
perhaps, going beyond

00:15:47.070 --> 00:15:50.340
what the Constitution actually requires,

00:15:50.340 --> 00:15:54.840
and instead enforcing, perhaps,
their own policy preferences

00:15:54.840 --> 00:15:57.520
or their own political morality.

00:15:57.520 --> 00:16:00.430
- [Kim] So we've learned
that Article III is crucial

00:16:00.430 --> 00:16:03.160
to the system of checks
and balances that limits

00:16:03.160 --> 00:16:05.510
the power of government
in the United States.

00:16:05.510 --> 00:16:08.930
The Supreme Court exercises
judicial review to ensure

00:16:08.930 --> 00:16:11.930
that the executive branch
and legislative branch

00:16:11.930 --> 00:16:14.320
act within the confines
of the Constitution.

00:16:14.320 --> 00:16:16.230
But the other branches
have plenty of checks

00:16:16.230 --> 00:16:17.820
on the judicial branch as well.

00:16:17.820 --> 00:16:21.010
One of the most central
questions about the Supreme Court

00:16:21.010 --> 00:16:23.650
is the relevance of the Constitution

00:16:23.650 --> 00:16:25.450
to the issues we face today.

00:16:25.450 --> 00:16:28.160
As Richard Garnett points
out, some scholars might say

00:16:28.160 --> 00:16:31.660
it's undemocratic to overrule
the will of the people

00:16:31.660 --> 00:16:34.430
as expressed through their
elected representatives

00:16:34.430 --> 00:16:35.900
based on the Constitution.

00:16:35.900 --> 00:16:38.720
But, as Jeff Rosen
argues, the Constitution

00:16:38.720 --> 00:16:40.500
is the supreme law of the land,

00:16:40.500 --> 00:16:43.560
and therefore striking down
a law as unconstitutional

00:16:43.560 --> 00:16:45.410
isn't thwarting the will of the people,

00:16:45.410 --> 00:16:46.830
but rather preserving it.

00:16:46.830 --> 00:16:48.390
To learn more about Article III,

00:16:48.390 --> 00:16:50.880
visit the National Constitution
Center's interactive

00:16:50.880 --> 00:16:53.360
Constitution and Khan Academy's resources

00:16:53.360 --> 00:16:55.340
on U.S. government and politics.


Article II of the Constitution

WEBVTT
Kind: captions
Language: en

00:00:00.519 --> 00:00:02.622
- [Kim] Hi, this is Kim from Khan Academy

00:00:02.622 --> 00:00:06.978
and today I'm investigating
Article Two of the Constitution

00:00:06.978 --> 00:00:11.308
which establishes the
executive branch of government.

00:00:11.308 --> 00:00:13.271
It's Article Two that establishes

00:00:13.271 --> 00:00:16.604
the office of president
of the United States,

00:00:16.604 --> 00:00:21.141
tells us who's eligible for
that role, how they get elected,

00:00:21.141 --> 00:00:23.077
and what powers they have.

00:00:23.077 --> 00:00:26.185
Now today, it seems very natural to us

00:00:26.185 --> 00:00:29.712
that the executive branch
of the US government

00:00:29.712 --> 00:00:33.584
should be led by a president
but at the time of the founding

00:00:33.584 --> 00:00:36.457
it wasn't at all certain
that that would be the case.

00:00:36.457 --> 00:00:39.910
After all, the Founders had just rebelled

00:00:39.910 --> 00:00:42.432
against a monarchy where power

00:00:42.432 --> 00:00:45.180
was placed in the hands of one individual.

00:00:45.180 --> 00:00:48.255
They'd been so nervous
about executive power

00:00:48.255 --> 00:00:52.070
that the first governmental
system of the United States,

00:00:52.070 --> 00:00:54.022
the Articles of Confederation,

00:00:54.022 --> 00:00:56.406
didn't have an executive branch at all.

00:00:56.406 --> 00:00:58.468
So to learn more about Article Two

00:00:58.468 --> 00:01:00.448
I sought out the help of some experts.

00:01:00.448 --> 00:01:02.513
Professor Sai Prakash is an expert

00:01:02.513 --> 00:01:06.238
in the separation of powers,
particularly executive powers

00:01:06.238 --> 00:01:08.018
and teaches constitutional law,

00:01:08.018 --> 00:01:10.946
foreign relations law,
and presidential powers

00:01:10.946 --> 00:01:13.494
at the University of
Virginia School of Law.

00:01:13.494 --> 00:01:16.933
For more on the debate about
what an executive branch

00:01:16.933 --> 00:01:20.410
should look like, I talked to
Professor Michael Gerhardt.

00:01:20.410 --> 00:01:22.519
He's a leading constitutional scholar

00:01:22.519 --> 00:01:26.006
whose specialties include
civil rights, civil liberties,

00:01:26.006 --> 00:01:28.018
and separation of powers.

00:01:28.018 --> 00:01:30.106
So Professor Prakash, why did the framers

00:01:30.106 --> 00:01:32.861
choose to invest power in a president?

00:01:32.861 --> 00:01:35.516
Were there any other options
for an executive branch?

00:01:35.516 --> 00:01:37.094
- [Professor Prakash] They
thought about creating

00:01:37.094 --> 00:01:39.261
an executive council, which
would have been composed

00:01:39.261 --> 00:01:41.511
of three or more executives

00:01:42.527 --> 00:01:43.887
that would have jointly exercised

00:01:43.887 --> 00:01:47.330
whatever executive power
they vested in the executive.

00:01:47.330 --> 00:01:48.978
And so you might have had a triumvirate

00:01:48.978 --> 00:01:51.977
like they had in Rome,
or an executive council

00:01:51.977 --> 00:01:53.773
like they had in some states.

00:01:53.773 --> 00:01:55.792
And they also thought
about doing something

00:01:55.792 --> 00:01:59.455
slightly different, which is
to have a single president,

00:01:59.455 --> 00:02:02.980
but then require the
president to go to a separate

00:02:02.980 --> 00:02:07.845
executive council before he
made several important decisions

00:02:07.845 --> 00:02:11.687
but in the end they decided
we like to concentrate

00:02:11.687 --> 00:02:15.458
executive authority in
the hands of one person

00:02:15.458 --> 00:02:19.780
thinking that that would be
better for law execution,

00:02:19.780 --> 00:02:22.396
better for assigning responsibility,

00:02:22.396 --> 00:02:25.057
would bring energy to the executive branch

00:02:25.057 --> 00:02:27.921
and the executive branch wouldn't be riven

00:02:27.921 --> 00:02:30.294
with dissent and dissension.

00:02:30.294 --> 00:02:31.352
- [Kim] I asked Professor Gerhardt

00:02:31.352 --> 00:02:32.884
how long it took the framers

00:02:32.884 --> 00:02:36.471
to decide on the form the
executive branch would take.

00:02:36.471 --> 00:02:38.913
- [Professor Gerhardt] It was
something on which the framers

00:02:38.913 --> 00:02:41.419
came to an agreement pretty quickly.

00:02:41.419 --> 00:02:45.634
They came into Philadelphia
and almost at the very outset

00:02:45.634 --> 00:02:49.425
there was a proposal that
came forward from Virginia,

00:02:49.425 --> 00:02:52.183
part of the Virginia Plan,
and the Virginia Plan

00:02:52.183 --> 00:02:56.620
proposed a single executive
who would serve for seven years

00:02:56.620 --> 00:02:59.642
and not be eligible for reelection.

00:02:59.642 --> 00:03:02.724
The delegates would eventually
agree on certain features

00:03:02.724 --> 00:03:07.265
which are now encapsulated or
can be found in Article Two.

00:03:07.265 --> 00:03:08.876
- [Kim] I think one of the tensions we see

00:03:08.876 --> 00:03:11.195
in the Constitution and the Bill of Rights

00:03:11.195 --> 00:03:14.345
is trying to create a
structure for government

00:03:14.345 --> 00:03:17.919
that's strong enough to
do what it needs to do,

00:03:17.919 --> 00:03:20.046
but also one that doesn't
have too much power

00:03:20.046 --> 00:03:21.881
so that it doesn't become a tyranny

00:03:21.881 --> 00:03:25.071
as the framers had seen in Europe.

00:03:25.071 --> 00:03:28.149
So were they nervous about
having an executive branch

00:03:28.149 --> 00:03:29.156
in the first place?

00:03:29.156 --> 00:03:31.395
- [Professor Prakash] That's
a great question, Kim.

00:03:31.395 --> 00:03:35.477
You know, we had a confederation
before the Constitution.

00:03:35.477 --> 00:03:38.223
It was called the Articles
of Confederation and

00:03:38.223 --> 00:03:43.036
in that system we had Congress
acting as a plural executive.

00:03:43.036 --> 00:03:46.512
And Congress and the observers of Congress

00:03:46.512 --> 00:03:49.111
thought that Congress
wasn't really well suited

00:03:49.111 --> 00:03:51.283
to playing the role of executive,

00:03:51.283 --> 00:03:52.837
to supervising foreign affairs,

00:03:52.837 --> 00:03:55.851
and to supervising executive officers

00:03:55.851 --> 00:03:57.916
both military and civilian.

00:03:57.916 --> 00:04:00.775
And so by the eve of the
Philadelphia Convention

00:04:00.775 --> 00:04:02.370
where they wrote the Constitution

00:04:02.370 --> 00:04:04.124
there were quite a few people saying

00:04:04.124 --> 00:04:06.744
we need to have a separate executive.

00:04:06.744 --> 00:04:09.196
We need to invigorate it with authority

00:04:09.196 --> 00:04:11.435
because if we do that we will then have

00:04:11.435 --> 00:04:15.225
a successful new government
under the new Constitution.

00:04:15.225 --> 00:04:17.094
- [Professor Gerhardt]
Alexander Hamilton, for example,

00:04:17.094 --> 00:04:20.754
wanted an executive who would
basically serve for life.

00:04:20.754 --> 00:04:22.298
He didn't get it.

00:04:22.298 --> 00:04:24.879
You can imagine that for many delegates

00:04:24.879 --> 00:04:27.024
an executive who could serve for life

00:04:27.024 --> 00:04:29.674
would sound an awful lot like a king,

00:04:29.674 --> 00:04:31.950
and that's exactly what they
had just rebelled against.

00:04:31.950 --> 00:04:33.696
- [Professor Prakash] Other people said

00:04:33.696 --> 00:04:36.558
if you create a unitary executive,

00:04:36.558 --> 00:04:39.987
if you create this single
executive, chief executive

00:04:39.987 --> 00:04:41.377
you're gonna have a monarchy.

00:04:41.377 --> 00:04:45.559
You're gonna have someone who
is intent upon seizing powers

00:04:45.559 --> 00:04:48.850
of various sorts, who's
going to want to install

00:04:48.850 --> 00:04:53.185
maybe a hereditary monarchy
somehow and that was the tension

00:04:53.185 --> 00:04:56.379
between those who wanted to
have a stronger executive,

00:04:56.379 --> 00:04:58.398
a stronger single executive thinking that

00:04:58.398 --> 00:05:00.758
that would be the best
thing for the government

00:05:00.758 --> 00:05:05.142
and those who thought
that a single executive

00:05:05.142 --> 00:05:08.025
would descend into a monarchy.

00:05:08.025 --> 00:05:10.000
- [Kim] So I imagine it was pretty tricky

00:05:10.000 --> 00:05:13.015
for the Framers to think
how they could have

00:05:13.015 --> 00:05:15.509
an executive branch
that was powerful enough

00:05:15.509 --> 00:05:18.571
to get things done, but not so powerful

00:05:18.571 --> 00:05:20.994
that it took on that tyrannical cast

00:05:20.994 --> 00:05:24.432
that they were really eager to avoid.

00:05:24.432 --> 00:05:28.014
So what powers did the president
eventually end up having?

00:05:28.014 --> 00:05:28.847
- [Professor Prakash]
You know, the president

00:05:28.847 --> 00:05:32.380
is made commander in chief
of the army and the navy.

00:05:32.380 --> 00:05:34.314
He has the power to pardon.

00:05:34.314 --> 00:05:35.628
- [Professor Gerhardt] The
president has the authority

00:05:35.628 --> 00:05:39.303
to nominate people to
certain high-ranking offices

00:05:39.303 --> 00:05:42.257
subject to the advice and
consent of the Senate.

00:05:42.257 --> 00:05:46.839
Among those offices are
included Supreme Court justices.

00:05:46.839 --> 00:05:48.217
The president has the authority

00:05:48.217 --> 00:05:50.024
to be able to negotiate treaties.

00:05:50.024 --> 00:05:51.716
- [Professor Prakash] So he's
got a host of authorities,

00:05:51.716 --> 00:05:54.560
and then there's the central
question that's disputed, Kim,

00:05:54.560 --> 00:05:57.839
which is does the first
sentence of Article Two,

00:05:57.839 --> 00:05:59.766
which says the executive
power shall be vested

00:05:59.766 --> 00:06:01.129
in a President of the United States,

00:06:01.129 --> 00:06:04.105
does that also give the
president any authority

00:06:04.105 --> 00:06:09.104
beyond what's listed in Article
Two sections two and three?

00:06:09.104 --> 00:06:12.055
So for instance, does the
Vesting Clause of Article Two

00:06:12.055 --> 00:06:15.123
give the president authority
over law execution?

00:06:15.123 --> 00:06:17.856
Is he able to direct the
execution of federal laws

00:06:17.856 --> 00:06:20.344
by subordinate executive officers?

00:06:20.344 --> 00:06:22.428
Does the president have
the power to remove

00:06:22.428 --> 00:06:25.424
executive officers by virtue
of the Vesting Clause?

00:06:25.424 --> 00:06:27.052
And then significantly, does he have

00:06:27.052 --> 00:06:31.024
foreign affairs authorities by
virtue of the Vesting Clause

00:06:31.024 --> 00:06:35.031
to speak to other nations to
direct US ambassadors, etc?

00:06:35.031 --> 00:06:39.869
And that's a dispute that's
been ongoing for 200 years

00:06:39.869 --> 00:06:42.395
whether the Vesting Clause really grants

00:06:42.395 --> 00:06:44.434
additional authorities to the president.

00:06:44.434 --> 00:06:46.530
- [Professor Gerhardt] So
all those different powers

00:06:46.530 --> 00:06:48.190
we now more or less take for granted

00:06:48.190 --> 00:06:51.433
that are common to US
presidents are all set forth,

00:06:51.433 --> 00:06:54.496
for the most part, expressed
in the Constitution.

00:06:54.496 --> 00:06:55.700
There are a few implicit powers

00:06:55.700 --> 00:06:57.913
the president will take on over time.

00:06:57.913 --> 00:06:59.883
- [Kim] As I understand
it, the president's powers

00:06:59.883 --> 00:07:02.596
have grown fairly significantly over time.

00:07:02.596 --> 00:07:04.793
Do you think the Framers
would be surprised

00:07:04.793 --> 00:07:07.962
by how much power the president has today?

00:07:07.962 --> 00:07:11.242
- [Professor Gerhardt] Yes,
it's grown, I think to be

00:07:11.242 --> 00:07:15.445
perhaps more powerful
than many of the Framers

00:07:15.445 --> 00:07:18.134
initially thought it might be.

00:07:18.134 --> 00:07:20.911
There were some authorities, for example,

00:07:20.911 --> 00:07:23.775
the power to remove people
in the executive branch

00:07:23.775 --> 00:07:26.621
that are not spelled out
explicitly in the Constitution.

00:07:26.621 --> 00:07:30.875
Over time, the presidency
would acquire that power

00:07:30.875 --> 00:07:32.722
and ultimately the Supreme
Court of the United States

00:07:32.722 --> 00:07:35.439
would ratify that, or
affirm that authority.

00:07:35.439 --> 00:07:38.244
That's one big area, removal power,

00:07:38.244 --> 00:07:39.773
over executive branch officials

00:07:39.773 --> 00:07:43.557
that gets clarified and
sharpened over time.

00:07:43.557 --> 00:07:46.756
- [Professor Prakash] Over
time the president has cited,

00:07:46.756 --> 00:07:49.509
president and his assistants
have cited the Vesting Clause

00:07:49.509 --> 00:07:52.935
as a source of a great amount of authority

00:07:52.935 --> 00:07:56.085
and some of those claims you might think

00:07:56.085 --> 00:07:58.241
are consistent with the Constitution

00:07:58.241 --> 00:07:59.911
and others you might
think are inconsistent.

00:07:59.911 --> 00:08:01.825
So what are the things that
presidents have claimed?

00:08:01.825 --> 00:08:04.086
They've claimed the authority to direct

00:08:04.086 --> 00:08:06.161
the execution of federal statutes.

00:08:06.161 --> 00:08:08.976
I think that's consistent
with the original design.

00:08:08.976 --> 00:08:12.232
They've claimed some limited
authority over foreign affairs.

00:08:12.232 --> 00:08:15.284
I think that, too, is consistent
with the original design.

00:08:15.284 --> 00:08:20.187
They've also claimed authority
to exercise certain powers

00:08:20.187 --> 00:08:23.718
in emergencies, that's more
contested and more debatable

00:08:23.718 --> 00:08:26.142
whether they have some
sort of emergency power

00:08:26.142 --> 00:08:28.254
either temporary or otherwise.

00:08:28.254 --> 00:08:29.795
- [Professor Gerhardt] When
Abraham Lincoln comes into power

00:08:29.795 --> 00:08:32.463
Congress is not in session
and Lincoln's gotta respond

00:08:32.463 --> 00:08:35.756
in real time to an invasion
on federal territory

00:08:35.756 --> 00:08:39.261
and to try to begin the
protection of the United States

00:08:39.261 --> 00:08:42.074
and he does that
initially without Congress

00:08:42.074 --> 00:08:44.925
being a part of it because
he has to move very quickly.

00:08:44.925 --> 00:08:46.436
- [Professor Prakash] They've
also claimed the authority

00:08:46.436 --> 00:08:49.519
to wage war and that's also contested

00:08:50.699 --> 00:08:54.229
because of course Congress
has the power to declare war

00:08:54.229 --> 00:08:57.102
and many people believe that that text

00:08:57.102 --> 00:08:59.816
means that Congress gets to
decide whether to wage war.

00:08:59.816 --> 00:09:02.023
Modern presidents take the position,

00:09:02.023 --> 00:09:05.699
or often take the position that
they can use military force

00:09:05.699 --> 00:09:09.733
overseas without getting
a declaration of war

00:09:09.733 --> 00:09:12.947
or more precisely, without
getting congressional approval

00:09:12.947 --> 00:09:15.043
for the use of force overseas.

00:09:15.043 --> 00:09:18.746
So yes, the president's
powers have changed over time

00:09:18.746 --> 00:09:20.989
and that's a source of deep controversy.

00:09:20.989 --> 00:09:24.552
- [Kim] So what checks can
the executive branch use

00:09:24.552 --> 00:09:28.365
on the legislative or judicial
branches of government?

00:09:28.365 --> 00:09:30.913
- [Professor Prakash] Kim,
the executive has a veto.

00:09:30.913 --> 00:09:32.896
And the veto permits the president

00:09:32.896 --> 00:09:37.557
to reject legislation sent
to his desk by Congress.

00:09:37.557 --> 00:09:39.596
So under the Constitution,
congress has to present

00:09:39.596 --> 00:09:41.526
all legislation to the president

00:09:41.526 --> 00:09:45.438
and he can either sign it
and thereby make it law,

00:09:45.438 --> 00:09:48.079
or he can veto it, and if he vetoes it

00:09:48.079 --> 00:09:50.777
and he sends back his
objections to Congress

00:09:50.777 --> 00:09:53.884
they then have the option
of overriding the veto

00:09:53.884 --> 00:09:56.773
by a two-thirds vote in both chambers.

00:09:56.773 --> 00:10:00.940
And so the veto gives the
president great leverage

00:10:02.119 --> 00:10:06.496
over Congress 'cause they know
that if he vehemently opposes

00:10:06.496 --> 00:10:09.672
a particular piece of legislation
they can only pass it if

00:10:09.672 --> 00:10:13.780
there are rather sizable
supermajorities in both chambers.

00:10:13.780 --> 00:10:14.805
- [Professor Gerhardt] He has a power

00:10:14.805 --> 00:10:17.119
to be able to pardon people
for federal offenses.

00:10:17.119 --> 00:10:19.844
So again, that's a unique
presidential authority.

00:10:19.844 --> 00:10:22.279
The presidency, in a sense, is
taking more of the limelight

00:10:22.279 --> 00:10:26.097
away from Congress, which
might be making the law,

00:10:26.097 --> 00:10:30.607
but administering the law is
gonna require a lot more time

00:10:30.607 --> 00:10:32.501
and put the president in the position

00:10:32.501 --> 00:10:36.327
of also exercising discretion
over how to enforce the law.

00:10:36.327 --> 00:10:38.453
So that becomes another
important authority

00:10:38.453 --> 00:10:41.379
of the presidency, how do
you go about enforcing it?

00:10:41.379 --> 00:10:43.723
What kind of discretion do you
have when you do enforce it?

00:10:43.723 --> 00:10:44.671
- [Professor Prakash]
He also has the power

00:10:44.671 --> 00:10:48.844
to recommend measures to
them under the Constitution.

00:10:48.844 --> 00:10:52.083
That is to say he can suggest
that they pass legislation

00:10:52.083 --> 00:10:54.405
on a particular subject thereby making

00:10:54.405 --> 00:10:56.737
sort of a vague suggestion, or
he can actually present them

00:10:56.737 --> 00:10:59.030
a bill and say I'd like
you to consider this.

00:10:59.030 --> 00:11:00.748
They don't have to act on the bill,

00:11:00.748 --> 00:11:02.710
but he has that authority.

00:11:02.710 --> 00:11:04.490
And you know, he can also tell them

00:11:04.490 --> 00:11:06.219
about the state of the union, right?

00:11:06.219 --> 00:11:07.651
That's the State of the Union Clause.

00:11:07.651 --> 00:11:11.602
So those are the checks
he sort of has on Congress

00:11:11.602 --> 00:11:13.517
and those are significant checks.

00:11:13.517 --> 00:11:15.617
The members of Congress don't get paid

00:11:15.617 --> 00:11:17.787
unless the president signs the bill

00:11:17.787 --> 00:11:19.665
that passes the appropriation for them

00:11:19.665 --> 00:11:22.592
or they override his veto.

00:11:22.592 --> 00:11:24.182
So those are significant checks.

00:11:24.182 --> 00:11:26.361
And then with respect
to the judiciary, Kim,

00:11:26.361 --> 00:11:31.011
there aren't as many
checks in the Constitution.

00:11:31.011 --> 00:11:34.522
The Constitution never
says the executive branch

00:11:34.522 --> 00:11:38.520
has to execute judgements
issued by the courts,

00:11:38.520 --> 00:11:40.700
but that's been our practice,

00:11:40.700 --> 00:11:43.628
and I think it's an implicit
feature of the Constitution

00:11:43.628 --> 00:11:45.693
that when courts issue judgements

00:11:45.693 --> 00:11:48.720
the executive will honor
them and enforce them.

00:11:48.720 --> 00:11:51.094
Because that's an implicit
feature of the Constitution

00:11:51.094 --> 00:11:53.638
presidents don't really have
much leverage over the courts,

00:11:53.638 --> 00:11:58.450
right, because the president
does get to nominate then

00:11:58.450 --> 00:12:01.096
and goes get to appoint
them and that gives him

00:12:01.096 --> 00:12:04.596
some sort of say over who becomes a judge,

00:12:06.161 --> 00:12:08.445
but once they're judges
he doesn't have any say

00:12:08.445 --> 00:12:12.620
over what they decide and
he typically, as I said,

00:12:12.620 --> 00:12:13.957
enforces their judgment.

00:12:13.957 --> 00:12:16.176
So the check on the judiciary is,

00:12:16.176 --> 00:12:19.452
who gets into the federal courts,

00:12:19.452 --> 00:12:21.853
who gets to serve as a federal judge.

00:12:21.853 --> 00:12:24.396
Once they're judges the
president doesn't have

00:12:24.396 --> 00:12:27.067
the same kind of check
that he has on Congress.

00:12:27.067 --> 00:12:29.714
There's no veto on judicial
decisions, for instance.

00:12:29.714 --> 00:12:31.368
- [Professor Gerhardt] The
president can unilaterally

00:12:31.368 --> 00:12:34.369
or on his own issue what
are called executive orders,

00:12:34.369 --> 00:12:37.156
which are essentially mandates that govern

00:12:37.156 --> 00:12:39.339
the operations within
the executive branch.

00:12:39.339 --> 00:12:42.794
One president can set
the priorities one way,

00:12:42.794 --> 00:12:46.618
but another president can
reshape them a different way.

00:12:46.618 --> 00:12:47.901
- [Kim] Interesting,
'cause executive orders

00:12:47.901 --> 00:12:51.591
can do very positive things
like Truman's executive order

00:12:51.591 --> 00:12:54.124
that the armed services be integrated,

00:12:54.124 --> 00:12:57.028
but they can also do very
negative things, for example,

00:12:57.028 --> 00:12:59.866
interning Japanese Americans
during World War Two.

00:12:59.866 --> 00:13:01.063
- [Professor Gerhardt] That is correct.

00:13:01.063 --> 00:13:04.230
And so the executive orders oftentimes

00:13:06.098 --> 00:13:08.931
might reflect a particular
president's values,

00:13:08.931 --> 00:13:12.152
but it can also particular
president's priorities.

00:13:12.152 --> 00:13:14.129
The challenge with an executive order

00:13:14.129 --> 00:13:15.876
is that it only lasts longer

00:13:15.876 --> 00:13:17.378
than a particular president's term

00:13:17.378 --> 00:13:20.405
if other presidents are willing
to sign off on them as well.

00:13:20.405 --> 00:13:23.551
And so for example, you
can see how President Trump

00:13:23.551 --> 00:13:27.183
has decided not to continue
certain executive orders

00:13:27.183 --> 00:13:29.108
that President Obama put into place

00:13:29.108 --> 00:13:31.755
just as President Obama
chose not to extend

00:13:31.755 --> 00:13:34.042
certain executive orders
President George W. Bush

00:13:34.042 --> 00:13:36.019
put into place.

00:13:36.019 --> 00:13:38.549
- [Professor Prakash]
Lots of rules and laws

00:13:38.549 --> 00:13:41.962
are not made by Congress
in the modern era.

00:13:41.962 --> 00:13:44.965
They're made by executive
and independent agencies

00:13:44.965 --> 00:13:47.711
and so a lot of the rules
that we have to follow

00:13:47.711 --> 00:13:52.547
about the environment or about
labor or about securities,

00:13:52.547 --> 00:13:55.746
they come from agencies and
not directly from Congress.

00:13:55.746 --> 00:13:58.171
And when the agency is
an executive agency,

00:13:58.171 --> 00:14:00.734
the president not only appoints the people

00:14:00.734 --> 00:14:05.499
that run that agency, the
president or his assistants

00:14:05.499 --> 00:14:07.197
in the White House are often involved

00:14:07.197 --> 00:14:11.521
in crafting the rules and shaping
the rules in various ways.

00:14:11.521 --> 00:14:16.033
And so if we think the mass
of rules and legislation

00:14:16.033 --> 00:14:18.688
comes from the government, the executive

00:14:18.688 --> 00:14:20.303
and not the Congress, then the president

00:14:20.303 --> 00:14:21.630
has a great role in that.

00:14:21.630 --> 00:14:24.770
- [Kim] So our first president
was George Washington.

00:14:24.770 --> 00:14:28.658
In what ways did Washington
set important precedents

00:14:28.658 --> 00:14:30.570
that are still with us today?

00:14:30.570 --> 00:14:32.010
- [Professor Gerhardt]
There are a lot of people,

00:14:32.010 --> 00:14:34.285
a lot of scholars who think that things

00:14:34.285 --> 00:14:36.904
would've been quite different
had it not been Washington.

00:14:36.904 --> 00:14:39.579
And the fact that George Washington

00:14:39.579 --> 00:14:41.474
would become the first president

00:14:41.474 --> 00:14:43.388
helped put a lot of people at ease

00:14:43.388 --> 00:14:47.036
because he was widely
viewed as trustworthy

00:14:47.036 --> 00:14:49.597
and somebody who wouldn't
be naturally disposed

00:14:49.597 --> 00:14:51.388
to become tyrannical.

00:14:51.388 --> 00:14:53.644
And Washington himself understood

00:14:53.644 --> 00:14:55.710
from the very outset of his administration

00:14:55.710 --> 00:14:58.398
that nearly everything he
did would create a precedent

00:14:58.398 --> 00:15:01.559
for other presidents to
follow, and so Washington

00:15:01.559 --> 00:15:04.410
ends up becoming quite influential,

00:15:04.410 --> 00:15:06.250
not just in helping to define things,

00:15:06.250 --> 00:15:09.378
but also in reassuring
people that this system

00:15:09.378 --> 00:15:11.423
can get off the ground and the presidency

00:15:11.423 --> 00:15:13.964
wouldn't necessarily
be a tyrannical office

00:15:13.964 --> 00:15:15.848
and that the president, in fact,

00:15:15.848 --> 00:15:20.240
could be an effective
part of a new government.

00:15:20.240 --> 00:15:22.060
- [Professor Prakash] If
Washington's not there

00:15:22.060 --> 00:15:26.812
and they can't see an honest
man taking over as president,

00:15:26.812 --> 00:15:29.562
you might very well have
had an executive council.

00:15:29.562 --> 00:15:31.401
You know, they might have been wary

00:15:31.401 --> 00:15:33.916
of who would be a unitary executive

00:15:33.916 --> 00:15:35.432
and wanted to have a plural executive

00:15:35.432 --> 00:15:38.069
in order to make sure that no one person

00:15:38.069 --> 00:15:42.230
became too powerful, and another
way of thinking about this

00:15:42.230 --> 00:15:45.251
is if you create a new Constitution

00:15:45.251 --> 00:15:47.252
in the wake of President Nixon,

00:15:47.252 --> 00:15:49.044
you're gonna have a different Constitution

00:15:49.044 --> 00:15:52.531
because people are more
distrustful of executive authority.

00:15:52.531 --> 00:15:54.142
If you have a new Constitution

00:15:54.142 --> 00:15:58.309
after a really honest and noble
and successful presidency,

00:15:59.514 --> 00:16:02.989
people are gonna write
an executive article

00:16:02.989 --> 00:16:05.271
that's more favorable to the president.

00:16:05.271 --> 00:16:07.115
And the situation for Washington

00:16:07.115 --> 00:16:08.545
couldn't have been more favorable.

00:16:08.545 --> 00:16:11.819
They had seen the problems
with weak execution

00:16:11.819 --> 00:16:14.034
under the articles and in the states.

00:16:14.034 --> 00:16:16.820
They thought that weak
executives were a problem.

00:16:16.820 --> 00:16:20.596
They saw this person who
could be a strong executive

00:16:20.596 --> 00:16:23.372
and be a responsible and wise executive

00:16:23.372 --> 00:16:26.161
and those two things conspired to create

00:16:26.161 --> 00:16:29.444
an executive that was one of
the most powerful in the world.

00:16:29.444 --> 00:16:31.241
- [Professor Gerhardt] So
Washington is trying to signal,

00:16:31.241 --> 00:16:34.703
look, we don't want to
create tyrants here.

00:16:34.703 --> 00:16:37.818
We're not kings, we're
not presidents for life.

00:16:37.818 --> 00:16:40.079
We'll serve at most for a couple terms

00:16:40.079 --> 00:16:43.279
and then we will willingly
lay down our authority

00:16:43.279 --> 00:16:44.971
and let other people follow us.

00:16:44.971 --> 00:16:48.795
That's actually a critical
precedent, but again,

00:16:48.795 --> 00:16:51.871
every president until
Franklin Roosevelt follows

00:16:51.871 --> 00:16:55.703
and it's one that reflects
Washington's special values

00:16:55.703 --> 00:16:58.544
that the most important
office, ultimately,

00:16:58.544 --> 00:17:00.494
is not the office of the presidency,

00:17:00.494 --> 00:17:02.896
it's actually the office, so to speak,

00:17:02.896 --> 00:17:06.347
the position of being a
citizen of this country.

00:17:06.347 --> 00:17:08.668
- [Kim] So we've learned
that thanks to the example

00:17:08.668 --> 00:17:11.340
set by George Washington, the
Framers of the Constitution

00:17:11.340 --> 00:17:13.730
felt confident that
they could invest power

00:17:13.730 --> 00:17:17.600
in a president to have an
energetic executive branch.

00:17:17.600 --> 00:17:20.663
But as Sai Prakash noted, the
Framers might be surprised

00:17:20.663 --> 00:17:23.637
at the way the president's
powers have grown over time

00:17:23.637 --> 00:17:26.859
through executive orders and
the use of military force.

00:17:26.859 --> 00:17:29.301
However, Michael Gerhardt
brings up an important point

00:17:29.301 --> 00:17:30.865
that in the United States

00:17:30.865 --> 00:17:35.100
the president is first and
foremost a citizen, not a ruler.

00:17:35.100 --> 00:17:37.159
To learn more about Article Two, visit

00:17:37.159 --> 00:17:40.456
the National Constitution
Center's Interactive Constitution

00:17:40.456 --> 00:17:44.623
and Khan Academy's resources
on US government and politics.


Article I of the Constitution

WEBVTT
Kind: captions
Language: en

00:00:00.200 --> 00:00:02.240
- [Instructor] Hey, this
is Kim from Khan Academy,

00:00:02.240 --> 00:00:04.520
and today I'm learning about Article I

00:00:04.520 --> 00:00:06.190
of the U.S. Constitution.

00:00:06.190 --> 00:00:08.730
Article I is jam packed
with information about

00:00:08.730 --> 00:00:10.630
how our government is supposed to work,

00:00:10.630 --> 00:00:13.610
but principally what it does
is create the Legislative

00:00:13.610 --> 00:00:15.181
Branch of government,
which includes the House of

00:00:15.181 --> 00:00:18.580
Representatives, and the
Senate, which together,

00:00:18.580 --> 00:00:21.610
comprise the Congress
of the United States.

00:00:21.610 --> 00:00:25.630
Article I also tells us
how people can get elected

00:00:25.630 --> 00:00:28.930
to those bodies, and
what powers Congress has.

00:00:28.930 --> 00:00:31.070
To learn more about
Article I, I talked to two

00:00:31.070 --> 00:00:32.890
Constitutional experts.

00:00:32.890 --> 00:00:35.910
Ilya Somin is a professor
of law at the Antonin Scalia

00:00:35.910 --> 00:00:38.770
Law School at George Mason
University, whose research

00:00:38.770 --> 00:00:41.750
focuses on Constitutional
law, property law,

00:00:41.750 --> 00:00:44.940
and the study of popular
political participation.

00:00:44.940 --> 00:00:48.300
Professor Heather Gerken is
the Dean of Yale Law School.

00:00:48.300 --> 00:00:51.010
She's a leading expert on Constitution law

00:00:51.010 --> 00:00:53.610
and election law, and
her research focuses on

00:00:53.610 --> 00:00:56.010
Federalism, diversity, and dissent.

00:00:57.572 --> 00:00:59.040
- [Dean Gerken] Article I
gives an enormous amount

00:00:59.040 --> 00:01:01.530
of power to the legislative branch,

00:01:01.530 --> 00:01:03.190
otherwise known as Congress,

00:01:03.190 --> 00:01:05.610
and it was designed
specifically to overcome

00:01:05.610 --> 00:01:08.223
some of the problems
that they'd seen under

00:01:08.223 --> 00:01:10.031
the Articles of Confederation.

00:01:10.031 --> 00:01:11.845
- [Professor Somin] The
legislative power under

00:01:11.845 --> 00:01:13.228
the Articles of Confederation

00:01:13.228 --> 00:01:17.510
was pretty weak, in part
because the Congress

00:01:17.510 --> 00:01:21.440
under the Confederate articles
didn't have the authority

00:01:21.440 --> 00:01:23.719
to directly tax the states.

00:01:23.719 --> 00:01:28.580
They also lacked a lot
of other powers that were

00:01:28.580 --> 00:01:31.430
eventually given to Congress
under the Constitution.

00:01:31.430 --> 00:01:33.280
- [Dean Gerken] These were the
things that really mattered

00:01:33.280 --> 00:01:35.380
if you're building a young nation.

00:01:35.380 --> 00:01:37.160
You need to be able to do
certain things in order

00:01:37.160 --> 00:01:41.199
to protect it, especially
at that time, when there

00:01:41.199 --> 00:01:42.940
were many, many other
countries that were circling

00:01:42.940 --> 00:01:46.431
around wanting to grab the land and power.

00:01:46.431 --> 00:01:48.964
And so the United States
needed to defend itself

00:01:48.964 --> 00:01:50.457
in those early days.

00:01:50.457 --> 00:01:52.050
- [Kim] Okay, so we
all know today that our

00:01:52.050 --> 00:01:55.950
Legislative Branch is
made up of the Senate

00:01:55.950 --> 00:01:57.610
and the House of Representatives.

00:01:57.610 --> 00:02:00.080
But it didn't have to be
that way, so why was it

00:02:00.080 --> 00:02:03.060
that the framers settled
on this two house structure

00:02:03.060 --> 00:02:04.500
for the Legislative Branch?

00:02:05.448 --> 00:02:06.760
- [Professor Somin] I
think for several reasons.

00:02:06.760 --> 00:02:11.060
One is that it was a compromise
between the small states

00:02:11.060 --> 00:02:12.940
and the large states.

00:02:12.940 --> 00:02:16.110
The large states, ones that
have a lot of population,

00:02:16.110 --> 00:02:19.750
wanted representation in
Congress in accordance with

00:02:19.750 --> 00:02:22.650
population, obviously then
the large states would get

00:02:22.650 --> 00:02:23.900
more representatives.

00:02:23.900 --> 00:02:26.330
The small states, on the
other hand, were concerned

00:02:26.330 --> 00:02:28.350
that they would be dominated
by the large states if

00:02:28.350 --> 00:02:30.893
that happened, so in the
end, the compromise is

00:02:30.893 --> 00:02:33.960
you have one house, the
House of Representatives,

00:02:33.960 --> 00:02:37.634
which is largely apportioned
based on population,

00:02:37.634 --> 00:02:42.488
and one house, the Senate,
which is apportioned

00:02:42.488 --> 00:02:46.270
based on each state having
two votes, no matter

00:02:46.270 --> 00:02:48.260
how small or how large it is.

00:02:48.260 --> 00:02:51.090
A second reason why you
end up with this structure

00:02:51.090 --> 00:02:54.030
is the influence of the British example.

00:02:54.030 --> 00:02:56.470
The British had both the
House of Commons and the

00:02:56.470 --> 00:02:58.110
House of Lords.

00:02:58.110 --> 00:03:00.920
And the House of Commons, of
course, being more subject

00:03:00.920 --> 00:03:04.039
to popular pressure, while
the House of Lords were this

00:03:04.039 --> 00:03:06.480
elite aristocracy.

00:03:06.480 --> 00:03:10.296
And the founders also wanted
a combination of popular

00:03:10.296 --> 00:03:11.950
and elite power.

00:03:11.950 --> 00:03:14.280
And it was thought that
the Senate would fill that

00:03:14.280 --> 00:03:17.530
elite role, in part, because
initially the senators

00:03:17.530 --> 00:03:20.480
were chosen by state
legislatures, rather than

00:03:20.480 --> 00:03:21.740
by the voters directly.

00:03:21.740 --> 00:03:23.240
- [Dean Gerken] So the
House of Representatives,

00:03:23.240 --> 00:03:26.450
which is based on districts,
is supposed to represent you

00:03:26.450 --> 00:03:29.486
based on where you live, and
the Senate, which is based

00:03:29.486 --> 00:03:33.770
on states, is supposed to
allow, at that time, the state

00:03:33.770 --> 00:03:36.778
legislature to nominate two
luminaries from the state

00:03:36.778 --> 00:03:38.310
to represent the state.

00:03:38.310 --> 00:03:40.510
- [Kim] So yeah, for a long
time, the senators were

00:03:40.510 --> 00:03:41.460
actually appointed.

00:03:41.460 --> 00:03:42.920
Now they're elected.

00:03:42.920 --> 00:03:44.790
- [Dean Gerken] Senators were
appointed until the passage

00:03:44.790 --> 00:03:48.060
of the 17th Amendment, which
amended Article I, and that

00:03:48.060 --> 00:03:51.210
gave state legislatures a
fair amount of influence over

00:03:51.210 --> 00:03:53.440
who went to the national government.

00:03:53.440 --> 00:03:56.083
- [Professor Somin] But it
is also true that many states

00:03:56.083 --> 00:03:58.690
by that time already
effectively had popular election

00:03:58.690 --> 00:03:59.620
of senators.

00:03:59.620 --> 00:04:01.147
- [Kim] Really interesting.

00:04:01.147 --> 00:04:03.330
Okay, so you described the
Senate as being kind of the

00:04:03.330 --> 00:04:05.900
American version of the
House of Lords, a little bit

00:04:05.900 --> 00:04:10.050
more elite, a little less
subject to popular opinion.

00:04:10.050 --> 00:04:13.190
How does that carry over
into the Senate that we

00:04:13.190 --> 00:04:14.023
have today?

00:04:14.023 --> 00:04:15.380
How are its powers different from

00:04:15.380 --> 00:04:17.410
the House of Representatives?

00:04:17.410 --> 00:04:19.430
- [Professor Somin] It does
have certainly different

00:04:19.430 --> 00:04:21.320
powers from the House in some respects.

00:04:21.320 --> 00:04:24.950
For example, it has the
power to ratify treaties

00:04:24.950 --> 00:04:27.750
and to confirm appointment
to the the Court and to the

00:04:27.750 --> 00:04:31.050
president's cabinet, so
earlier this year when

00:04:31.050 --> 00:04:33.710
Neil Gorsuch was appointed
to the Supreme Court,

00:04:33.710 --> 00:04:35.350
he had to be confirmed by the Senate.

00:04:35.350 --> 00:04:40.030
Obviously today, the Senators
are elected just like

00:04:40.030 --> 00:04:42.610
members of the House are,
and I think they're every

00:04:42.610 --> 00:04:45.990
bit as partisan and almost
as sensitive to public

00:04:45.990 --> 00:04:49.399
opinion as members of the
House of Representatives,

00:04:49.399 --> 00:04:52.940
so the difference between
the Senate and the House

00:04:52.940 --> 00:04:56.230
in that regard, maybe it
hasn't completely disappeared,

00:04:56.230 --> 00:04:58.610
but it's certainly greatly diminished.

00:04:58.610 --> 00:05:00.530
- [Kim] Okay so there are
certain powers that are

00:05:00.530 --> 00:05:01.670
reserved to the Senate.

00:05:01.670 --> 00:05:03.663
Are there particular
powers that are reserved to

00:05:03.663 --> 00:05:04.980
the House of Representatives?

00:05:04.980 --> 00:05:06.260
- [Dean Gerken] The House is important.

00:05:06.260 --> 00:05:07.970
Don't underestimate the
importance of the House.

00:05:07.970 --> 00:05:10.360
I'll just say the House
of Representatives,

00:05:10.360 --> 00:05:12.500
for example, is allowed
to initiate impeachment

00:05:12.500 --> 00:05:15.210
proceedings against the president.

00:05:15.210 --> 00:05:16.810
- [Professor Somin] If
the House votes in favor

00:05:16.810 --> 00:05:20.100
of impeachment, then
the Senate holds a trial

00:05:20.100 --> 00:05:22.500
to determine whether
the official in question

00:05:22.500 --> 00:05:23.810
gets convicted or not.

00:05:23.810 --> 00:05:25.630
- [Dean Gerken] As a
general matter, though,

00:05:26.504 --> 00:05:27.337
they're roughly co-equal.

00:05:27.337 --> 00:05:29.750
For the big, important things,
like passing legislation,

00:05:29.750 --> 00:05:32.150
you need both of them to work together.

00:05:32.150 --> 00:05:36.490
- [Kim] So together these
two houses make up Congress.

00:05:36.490 --> 00:05:40.124
So how is Congress different
from the Executive Branch

00:05:40.124 --> 00:05:41.950
or the Judicial Branch?

00:05:41.950 --> 00:05:43.810
What are its powers?

00:05:43.810 --> 00:05:45.440
- [Dean Gerken] The way that
the framers understood it

00:05:45.440 --> 00:05:47.980
was that each one would
have their own job.

00:05:47.980 --> 00:05:51.410
So the judiciary, obviously,
was there to judge

00:05:51.410 --> 00:05:54.817
disputes between people, to run
the court system, et cetera.

00:05:54.817 --> 00:05:57.880
The executive was there
to carry out the laws.

00:05:57.880 --> 00:06:00.380
And so the executive's job
is to administer the law

00:06:00.380 --> 00:06:01.940
once it has been made.

00:06:01.940 --> 00:06:04.770
And of course the legislature
is there to legislate.

00:06:04.770 --> 00:06:07.610
So its main job was to make the law.

00:06:07.610 --> 00:06:10.820
And at the time, I will just
tell you, everyone thought

00:06:10.820 --> 00:06:13.260
that the big gorilla in
the room was Congress,

00:06:13.260 --> 00:06:17.040
that it would be by far the
most powerful organization.

00:06:17.040 --> 00:06:19.731
The framers simply did not
anticipate how powerful

00:06:19.731 --> 00:06:23.625
both the judiciary and the
president would become over time.

00:06:23.625 --> 00:06:27.530
- [Kim] So what happens if,
for example, the Congress

00:06:27.530 --> 00:06:29.978
and the president don't get along?

00:06:29.978 --> 00:06:32.184
- [Professor Somin] Well,
it happens quite a lot.

00:06:32.184 --> 00:06:37.184
The president could refuse
to accept laws passed by

00:06:38.040 --> 00:06:40.220
Congress, he could veto them.

00:06:40.220 --> 00:06:43.850
In that event, Congress
can only override it if

00:06:43.850 --> 00:06:45.953
two-thirds of both the
House and the Senate voted

00:06:45.953 --> 00:06:47.690
to do so.

00:06:47.690 --> 00:06:50.250
Congress, on the other hand,
can pressure the president

00:06:50.250 --> 00:06:51.450
in various ways.

00:06:51.450 --> 00:06:54.540
They can hold hearings
investigating his conduct on

00:06:54.540 --> 00:06:56.310
various issues.

00:06:56.310 --> 00:07:00.343
They can de-fund agencies
of the Executive Branch

00:07:00.343 --> 00:07:03.290
whose job performance they don't like.

00:07:03.290 --> 00:07:06.380
They can refuse to confirm
the president's appointees

00:07:06.380 --> 00:07:10.023
to various offices, and in
extreme cases, that have

00:07:10.023 --> 00:07:13.319
happened a couple of times
in our history, Congress

00:07:13.319 --> 00:07:16.460
can even impeach the
president, and if he gets

00:07:16.460 --> 00:07:19.400
convicted in the Senate,
then he would be removed

00:07:19.400 --> 00:07:20.410
from office.

00:07:20.410 --> 00:07:23.580
This is what led to the
resignation of Richard Nixon.

00:07:23.580 --> 00:07:25.655
The House of Representatives
impeached him,

00:07:25.655 --> 00:07:29.810
and Nixon resigned before he
could be tried in the Senate.

00:07:29.810 --> 00:07:32.332
President Andrew Johnson
and President Bill Clinton

00:07:32.332 --> 00:07:36.438
were also both impeached,
and in both cases, the Senate

00:07:36.438 --> 00:07:40.520
ultimately acquitted
them, but it was still a

00:07:40.520 --> 00:07:42.870
very painful time for
both of those presidents.

00:07:43.790 --> 00:07:47.430
- [Kim] So speaking of
antagonistic relationships,

00:07:47.430 --> 00:07:50.230
I think one thing that's really
come to dominate Congress

00:07:50.230 --> 00:07:51.480
is partisanship.

00:07:51.480 --> 00:07:54.290
To what extent did the
Constitution anticipate this

00:07:54.290 --> 00:07:57.480
rise of parties and partisanship?

00:07:57.480 --> 00:07:59.100
- [Professor Somin] They
actually knew about parties

00:07:59.100 --> 00:08:03.040
to some degree from their
British experience, but they

00:08:03.040 --> 00:08:06.280
were very suspicious of them,
and they hoped and perhaps

00:08:06.280 --> 00:08:09.110
expected that they wouldn't
emerge in America to

00:08:09.110 --> 00:08:11.860
anything like the same extent
that they had in Britain.

00:08:13.217 --> 00:08:15.550
But in actual fact, a few
years after the adoption

00:08:15.550 --> 00:08:19.400
of the Constitution, we already
had the first party system,

00:08:19.400 --> 00:08:21.930
the Federalists and the
Democratic Republicans,

00:08:21.930 --> 00:08:24.863
and partisan alignments have
played a big role in Congress

00:08:24.863 --> 00:08:26.410
ever since then.

00:08:26.410 --> 00:08:28.390
- [Dean Gerken] So even
back then there were rival

00:08:28.390 --> 00:08:30.640
interpretations of how the Constitution

00:08:30.640 --> 00:08:32.940
should be carried out,
and what kind of power

00:08:32.940 --> 00:08:35.060
the national government should wield.

00:08:35.060 --> 00:08:37.950
But they somehow thought,
naively, I think, that the

00:08:37.950 --> 00:08:40.768
parties would disappear
and that people would have

00:08:40.768 --> 00:08:44.030
allegiances to their
state or to their region,

00:08:44.030 --> 00:08:47.210
but they wouldn't have
allegiance to a party.

00:08:47.210 --> 00:08:50.210
That broke down completely
almost immediately

00:08:50.210 --> 00:08:52.230
after the Constitution was written.

00:08:52.230 --> 00:08:55.880
That leads to a real problem
these days, because most

00:08:55.880 --> 00:08:59.180
modern Constitutions
recognize that there will be

00:08:59.180 --> 00:09:01.650
two parties, that they
will be in competition with

00:09:01.650 --> 00:09:04.070
one another, and that
part of the job of the

00:09:04.070 --> 00:09:07.046
Constitution is to
regulate that competition.

00:09:07.046 --> 00:09:08.650
- [Professor Somin] Would
the founders have done

00:09:08.650 --> 00:09:11.750
anything differently if
they had known about parties

00:09:11.750 --> 00:09:14.210
and expected that they
would play such a big role?

00:09:14.210 --> 00:09:17.130
It's hard to know for sure,
but maybe they would have

00:09:17.130 --> 00:09:21.420
been less confident than some
of them were that Congress

00:09:21.420 --> 00:09:24.030
would always stand up for
its prerogatives against

00:09:24.030 --> 00:09:27.270
the president when the
president and Congress are

00:09:27.270 --> 00:09:29.040
of the same party.

00:09:29.040 --> 00:09:32.008
I think often Congress
is inclined to overlook

00:09:32.008 --> 00:09:34.920
various presidential abuses.

00:09:34.920 --> 00:09:36.350
- [Kim] If the reverse
is true, things might

00:09:36.350 --> 00:09:37.840
be very difficult to do.

00:09:37.840 --> 00:09:38.673
- [Dean Gerken] Exactly.

00:09:38.673 --> 00:09:40.745
I mean the whole point about
them needing one another

00:09:40.745 --> 00:09:43.911
to act is really a problem
if one side is antagonistic

00:09:43.911 --> 00:09:46.260
to the other side.

00:09:46.260 --> 00:09:48.410
- [Kim] One other thing
we see here in Article I,

00:09:48.410 --> 00:09:51.322
is talking about kind of what
the Federal government does

00:09:51.322 --> 00:09:53.210
versus what the states do.

00:09:53.210 --> 00:09:56.880
So this is kind of the
idea of Federalism, then.

00:09:56.880 --> 00:09:59.180
Could you tell us a little
bit more, just about what

00:09:59.180 --> 00:10:01.750
Federalism is and how
it's supposed to work?

00:10:01.750 --> 00:10:03.090
- [Dean Gerken] So the
way that we understand

00:10:03.090 --> 00:10:05.580
Federalism back then, was
that there was a division

00:10:05.580 --> 00:10:06.450
of labor.

00:10:06.450 --> 00:10:08.990
The states would regulate
things that were inside

00:10:08.990 --> 00:10:11.730
their territories, and
accorded to them in terms of

00:10:11.730 --> 00:10:14.024
responsibility, and the Federal
government would regulate

00:10:14.024 --> 00:10:18.370
everything that was accorded
to it under the Constitution.

00:10:18.370 --> 00:10:22.340
The problem is, as Congress'
power became more and more

00:10:22.340 --> 00:10:25.624
expansive, it ended up
regulating the same areas

00:10:25.624 --> 00:10:27.420
that the states regulate.

00:10:27.420 --> 00:10:30.180
- [Kim] So if the Federal
government and the states

00:10:30.180 --> 00:10:33.650
have a law on the same topic, who wins?

00:10:33.650 --> 00:10:35.530
- [Dean Gerken] As long as
it's passed properly by the

00:10:35.530 --> 00:10:37.350
Federal government, then
the Federal government wins.

00:10:37.350 --> 00:10:39.840
So if there's a Federal
law and the state law is

00:10:39.840 --> 00:10:43.630
inconsistent with it, the
state law is displaced.

00:10:43.630 --> 00:10:45.540
- [Kim] Is there anything
that might surprise the

00:10:45.540 --> 00:10:48.150
framers about how our
Congress operates today?

00:10:49.080 --> 00:10:51.610
- [Professor Somin]
When the framers created

00:10:51.610 --> 00:10:54.560
Article I and drafted it,
they certainly expected

00:10:54.560 --> 00:10:57.410
that Congress would have
more power under the

00:10:57.410 --> 00:10:59.230
Constitution than it did under the

00:11:00.204 --> 00:11:02.100
Articles of Confederation,
but I don't think

00:11:02.100 --> 00:11:04.070
very many of them would have believed

00:11:04.070 --> 00:11:06.790
that Congress would ever
be able to do things like

00:11:06.790 --> 00:11:10.880
forbid the growth of medical
marijuana in your backyard,

00:11:10.880 --> 00:11:13.670
or regulate what kind of
toilet you're allowed to have

00:11:13.670 --> 00:11:17.400
in your house, or for that
matter, do something like

00:11:17.400 --> 00:11:20.210
the war on drugs, which
forbids the possession of drugs

00:11:20.210 --> 00:11:24.310
throughout the country, and the like.

00:11:24.310 --> 00:11:28.890
Originally the power to
regulate interstate commerce,

00:11:28.890 --> 00:11:31.890
which is the authority under
which most of these things

00:11:31.890 --> 00:11:36.190
are done, it was at the
time conceived of as a power

00:11:36.190 --> 00:11:39.770
for Congress to break down
trade barriers between states

00:11:39.770 --> 00:11:43.370
and perhaps regulate the
actual shipment or trading

00:11:43.370 --> 00:11:45.701
goods and services across state lines.

00:11:45.701 --> 00:11:48.775
It was not until the 20th
century, particularly

00:11:48.775 --> 00:11:52.510
after the New Deal, that
Congress was able to start

00:11:52.510 --> 00:11:55.810
using this as a power
to regulate nearly every

00:11:55.810 --> 00:11:58.900
aspect of human life that
might in some respect

00:11:58.900 --> 00:12:00.720
affect the national economy.

00:12:00.720 --> 00:12:02.920
So that, I think, is a huge change.

00:12:02.920 --> 00:12:05.667
- [Dean Gerken] I think
what would really surprise

00:12:05.667 --> 00:12:07.620
the framers is how willing
Congress has been to

00:12:07.620 --> 00:12:09.040
give up its own power.

00:12:09.040 --> 00:12:12.680
So Congress has given the
president a lot of power,

00:12:12.680 --> 00:12:15.090
because it's created
administrative agencies

00:12:15.090 --> 00:12:17.780
with vaguely defined
mandates that therefore allow

00:12:17.780 --> 00:12:20.730
the president to use his
entire administrative agency

00:12:20.730 --> 00:12:23.470
apparatus to pursue his goals.

00:12:23.470 --> 00:12:26.230
- [Kim] So we've learned that
Article I of the Constitution

00:12:26.230 --> 00:12:28.530
establishes the Legislative Branch of the

00:12:28.530 --> 00:12:31.472
U.S. government, which
is made up of the Senate

00:12:31.472 --> 00:12:32.500
and the House of Representatives.

00:12:32.500 --> 00:12:35.680
These two bodies were created
to balance popular power

00:12:35.680 --> 00:12:38.400
with elite power, since
members of the House of

00:12:38.400 --> 00:12:41.380
Representatives were directly
elected by the people,

00:12:41.380 --> 00:12:45.860
whereas senators were appointed
by state legislatures.

00:12:45.860 --> 00:12:48.610
Although one major change
is that senators are now

00:12:48.610 --> 00:12:51.540
elected as well, what might
really surprise the framers

00:12:51.540 --> 00:12:54.140
about Congress today is
how its power has evolved

00:12:54.140 --> 00:12:54.973
over time.

00:12:54.973 --> 00:12:57.590
On one hand, as Heather
Gerken mentioned, the powers

00:12:57.590 --> 00:12:59.627
of the president and the
Supreme Court have grown

00:12:59.627 --> 00:13:03.880
compared to the powers of
Congress, but on the other hand,

00:13:03.880 --> 00:13:07.440
as Ilya Somin points out, the
framers might be surprised

00:13:07.440 --> 00:13:11.870
at just how much of our lives
Congress can regulate today.

00:13:11.870 --> 00:13:14.480
To learn more about Article
I, visit the National

00:13:14.480 --> 00:13:17.400
Constitution Center's
interactive Constitution,

00:13:17.400 --> 00:13:19.930
and Khan Academy's
resources on U.S. government

00:13:19.930 --> 00:13:21.050
and politics.