[BLANK_AUDIO] Welcome back. Throughout this course, we've been talking about America's Constitution written and unwritten and about constitutional law, but. What exactly is a constitution? What is constitutional law? At root one idea at least is that constitutional law is about the government is constitute, how it's arranged how different entities and organs of government power operate and and, and work together. So if you're ever Meet someone from Britain for example. Don't say you know, that they don't have a constitution in Britain. They'll take offense at that. They, they do have a constitution it's just not a written one, the way ours is. They don't have a single terse text that puts in one place the basic ground rules about how the society is, is to be governed. But they do have an unwritten constitution. A series of customs, traditions, practices, institutions that have created and evolved over the centuries. Defining basically their system of, of government. How government is constituted in Great Britain. They have an unwritten constitution, and so does America. But the challenge in America is we have no just unwritten traditions and institutions and folk ways about how our system works. We also have the written one [COUGH]. This, this terse text that I keep alluding to from time to time. And, and so the, the challenge for us Americans is to try to figure out how our unwritten constitution fits with the written constitution. And ,uh, in this lecture and the next one I'm going to focus on ,uh, how government power is generally constituted, how it's configured. We've already talked a little bit about the presidency and, the big idea is that the presidency its, its powers, its [COUGH] its structure. Its constitution if you will, is defined not merely by what the terse text says, because it's not very specific in certain respects, about the presidency and article two. So it's not merely defined by what the terse text says, but by, how the presidency has, existed over the centuries. How it actually has operated beginning with the key precedence set by George Washington early on. That that gave more concrete substance and meaning to, to an otherwise, slightly open-ended and ambiguous text. We're going to see that the same thing that we saw was true of Washington and the presidency. That there's an unwritten set of traditions that gloss the tourist text, the same thing that's true of the presidency is also true of the rest of government. It's true of Congress, it's true of the judiciary, it's true of administrative agencies. In all these cases [COUGH] excuse me. In all these cases that text is slightly under specified it where its clear it controls but there places where its unclear. And where its unclear its actually the practices that gloss it, that, that fill out its gaps and give it meaning and so the unwritten constitution and the written constitution fit together. The text controls where clear and where unclear, the gaps are filled by the unwritten constitution, by actual practice. So lets take congress for example. And I'll give you a bunch of examples in this lecture and the next one. Let's take congress, you might think congress is a body of enumerated powers. And you might also think that ours is a system of strict separation of powers that very much protects liberty. That in general you don't go, you, you can't be basically incarcerated and and imprisoned, unless both the House and the Senate have agreed to a federal criminal law. And the President has agreed to actually enforce it. If he doesn't enforce it basically there's no one to prosecute you, and a judge and a jury both agree that, that you're guilty. So at least at the federal level, you might think that you have all these separations of powers protections. The house and the senate have to be on board, making something a crime. The President has to agree that it should be a crime and has to agree to prosecute it in effect through his his deputies, the Justice Department, headed by the Attorney General. And judges and juries have to agree. So you might think there's a strict separation of power system, generally. At least at the when it comes to punishment. And you might think, at the federal level, and you might think there are some numerated powers. But it turns out it's not quite so. There are occasions in which the Cong, each House of Congress can act on it's own as policeman, prosecutor, judge, juror jury and jailer all in one. Without a statue each house of Congress can conduct for example, oh oversight hearings and for, and oblige people to come testify. And if they don't those persons can, even if they are private citizens or government officials. Can be held in contempt. Which means that they can actually be incarcerated, detained by The House until they answer the questions. And even more for certain offenses that are committed either by a private person or by a government official against each House. Each House claims the authority and has done so since the founding, to adjudicate to, to prosecute that. To charge a person with a crime against the House like bribery of a House member, bribery of a Senate member or attempted bribery, to charge that person to adjudicate for itself. The crime and to, to hold that person in, in prison, basically, in a dungeon, in the, the house or senate building itself. At least as long as the house and the senate is respectively in session, and that's Kind of mind blowing. It's a, it's a, an exception to the general separation of powers idea to the general idea of enumerated powers because the text doesn't say that in so many words. Doesn't say any of that. And yet, that's clearly established in our system. Now the text can be read to permit this and if it, if it couldn't, then we'd have to say this practice is, is just unconstitutional in so far as it, it, it breaks with the terse text. You can say that inherent, in the power of the legislature are, are certain, in oversight and investigation, functions, the power to, to summon witnesses and oblige them to testify truthfully. And to prosecute certain offenses against each house. You could say that's just inherent in, the, being a legislature. You can say parliament, the English parliament have those power. And many state constitutions had state legislatures at the time of the founding. And the time of founding, the state legislatures claimed these inherent powers, even when they weren't specifically mentioned in the state constitution. So you could say, well, the time of the founding parliament could do this, state legislatures could do this, but parliament is a sovereign body. It sort of has, it's not a creature of enumerated powers at all. It can kind of do almost anything it wants. It's the proverbial 800-pound gorilla that, that basically does whatever it likes. And state legislatures again many of them were not creatures of enumerated powers. And there's a less strict separation of powers system, at the state level. For example, certain things might be state law crimes even though the legislature didn't create a statute. Just judges recognized certain things, state judges as state crimes. That's not true at the federal level. There's no federal crime unless the legislature makes it a crime. Federal judges on their own can't create federal criminal law. State judges, in effect, can. So, so if we just had the text of the Constitution and these, these earlier examples of state legislatures and parliament, we could say well the federal constitution is stricter. It's got a stricter system of enumerated powers. It's got a stricter system of separation of powers so, so congress doesn't have these inherent powers the way state legislatures might or parliament might But that's not how it's played out. From day one, the con, each branch of Congress has claimed these broad powers. And these broad powers have been recognized and confirmed by the other branches of government. So, for example, very early on both the House and the Senate claimed the power to hold oversight hearings and to compel people to testify. [COUGH] When they thought there was maybe some problem that needed their attention. And almost anything that could result in legislation can be the subject or, or even could result in a possible constitutional amendment, can be the proper subject of a congressional investigation. Early on, there were questions about the financier of the American Revolution, Robert Morris and whether he had engaged in financial and propriety. So he actually asked Congress to hold, hearings on that. And, and the House of Representatives did even though, again, there's nothing specific that gives it the power to hold hearings. When there was a botched military expedition early on, under President Washington, by General Arthur St. Clair. The Senate held oversight hearings. And again this was accepted as their power, they could, they could subpoena witnesses, and force folks to, to testify. and, and if people didn't testify, they could be held in contempt. Held to incarcerated, literally held until they were ready to answer. And, more than that early on there was a fellow named Robert Randall. And he wasn't a witness before Congress. He was just accused of having, bribed a Congress member, early on. And, so when this allegation came to the attention of the House of Representatives that this fellow Randall had attempted to bribe House members. They basically grabbed, they used their officers, their sergeant at arms to grab Randall. Bring him into the House of Representatives. They held a trial. I think it lasted three days. At the end of the trial they, sitting as in effect a court. They just turned themselves into a court. They, they prosecuted, they, they grabbed him, they're, kind of, as a policeman. They prosecuted him on their own, the House, the House of Representatives. They sat as judge and jury and in effect convicted him. And then they threw him in the, the dungeon. There actually are prison cells in the Capitol Building, and they held him there for a week. And they've claimed the, power, the inherent power. To, to punish for certain contempts of, of congress each house has claimed that power the supreme court has unanimously upheld a this a case called Anderson against Done going all the way back. To the Marshall Court Era. Twentieth century courts have repeatedly reaffirmed this power. Courts might think that the person is innocent but they don't release the person just if, if the, the House prisoner claims he's innocent and the, and the court agrees. They basically say as long as the House or the Senate acted within its jurisdiction we're not going to second-guess the judgments. So what, what are, what are the rules. Well, they can, no one can be held for longer than the house or the senate is in session. It has to be for of a violation of some, of you have to be part, charged with some crime against congress itself, like, like bribing a house member. Or lying before congress, something like that. It can't, the, the prosecution can't violate the bill of rights. So you can't be punished for merely speaking out against congress. Presumably you're entitled to certain fair procedures. To have a lawyer present and other things. But as long as each house basically kind of acted as a court and acted only within the area that that involved that the jurisdiction of the house or the senate as such. Then you can, you can do it. And again, the text doesn't say so but our practices do and the text is somewhat ambiguous on this. This is understood as an inherent power of the legislature. The legislature can't perform its function unless it can find out what's happening in the world in order to legislate intelligently. So that means it has that very broad oversight power, the power to summon witnesses and get them to, to give congress information it needs. And it has to have the power apparently, on its own to prosecute the crimes and offenses against it. It shouldn't have to rely the thought is, on courts or on the executive branch to do this. So, America's written, unwritten constitution cohere in a way. The written constitution can be read different ways and, and these early practices definitively determine which way the text actually, the ambiguous text is read. Let's talk about vacancies in the three branches of government. So what happens for example, if there's a judicial vacancy? Well, the Constitution says that the President has power to fill certain vacancies that occur during, let's imagine a vacancy occurs when the Senate isn't in session. because ordinarily, the President would nominate a judge and then the Senate would confirm, the position, but what happens if the vacancy occurs when the Senate isn't in session? It's a cabinet vacancy or a judicial vacancy. Well, for a cabinet vacancy you can say, well. The president needs his team in place. He gets to put someone in temporarily. And there's a specific clause. The recess appointment clause that says that the president during a senate recess can temporarily put someone in if the senate isn't in session. But if we were just look, just looking at the text, when it comes to judges, that would be a little awkward because on the one hand there's this recess appointment clause. On the other hand judges's are suppose to serve for good behavior, and affect have, have life tenure and have a certain kind of independence. And they wouldn't really have complete independence if they were basically, only provisional or probationary judges. They, they would be in power until the senate reconvened But then the senate would be free to not confirm them for the position. And to, in effect, toss them out. And the Senate might do that, because the Senate was displeased by their early rulings. So, so, it's, it's slightly awkward to allow these recess appointments for, for judges. Because that, that doesn't really fit so well with the idea of judicial independence. And if we just have the text in front of us, we might say, okay. Well, there's the recess appointment clause, and there's the idea of judicial independence. We can have them both under the following practice, that if the president picks someone to fill a temporary to fill a, a recess, a vacancy to fill a vacancy, excuse me, that's occurred during a Senate recess. The person should serve just during that recess. They shouldn't really be eligible to fill the slot permanently. And that way if, let's say there's some very, senior statesman or something, and, and so they, they filled in. The cases get decided. We've got the judges in place, but they're not really kind of up for the permanent position. So they have, in effect, complete independence. They because that's, they're not going to have to worry about whether they're going to get confirmed by the Senate or not, because they're not even up for that. They're not looking, deciding cases, looking over their shoulder at all time, worrying about what the, how the Senate will think about that. So that's probably the best interpretation of the Constitution on the clean slate but that's actually not the rules of the game today. And that's because the Constitution can be read in other ways, and in fact it has been read in other ways, and from the beginning, from George Washington on. Presidents have picked judges, and put them on lower courts. And actually until recently, on the Supreme Court, temporarily while the Senate was in session. And these people actually, these these judges decided cases before they had been confirmed by the Senate. And the Senate was free to either confirm them or not. And actually in one case, the sen, early on, the Senate didn't confirm the recess appointment. So it was clear early on that, that these probationary judges didn't quite have the, the full independence of other judges. But never the less, our system has a, in its actual operation, in its practice, in its kind of British style constitutional configuration. Our system has basically recognized the legitimacy, the lawfulness of these recess appointments. To the judiciary. Now what happens when, there's a vacancy in the Senate, that's a little easier. You hold a new election for the senator, and before that election the governor can temporarily name someone if, if authorized. So, but what about, so vacancies for the, the Senate is not so complicated. But what about the House? And in particular, what about the very first meeting of a, a new House of Representatives? because the House of Representatives in effect, dies every two years. The Senate is a kind of, ongoing, continuous body. At any given election only a 3rd of the Senate, basically, is up for election, 2 3rds just carries over. It's a staggered system. So everyone serves a six years term, but only 1 3rd of the Senator's are up in any given two year interval. And so the Senate basically, they're always in effect, or typically, 2 3rd's of the Senators in place To swear in the new Senators who've been newly elected. So that works pretty smoothly. But what about the House of Representatives? There's a two year term. At the end of every two years the old house dies and a new house is elected. These formerly on day one, no one is a house member before anyone else is a house member. No one carries over, there is no continuity. Even someone who's has been speaker of the house for twenty years. On day one of the new congress, that person is just the same as a newly elected freshman house member and the interesting question is. Well, what happens if there's a question, about whether someone was properly elected or not, whether the election was fair, remember each house is the judge of its own elections, but what happens if there's a question about some house member? Well, if there's one or two or three contested elections, everyone else is sworn in and those people sort of stand aside, and that. But what happens if there's a chal, so ordinarily this question of what happens on day one in the House of Representatives is a little bit theoretical. But during the Civil War it was anything but theoretical because there was a question about a whole bunch of members of, would-be members of the House of Representatives. Who came from the states who had purported to secede. And in 1865 they show up and say we're back, we are ready to be seated in December of 1865, and the others say not so fast. But on day 1 you see who decides, who gets sweared in on day 1. Who decides who decides? Who decides who decides who decides? Its an infinite regress problem in theory. And eh, so, and the Constitution doesn't quite specify how all that will work out. Now you could say, oh here's what should happen. The old House of Representatives the outgoing one should basically sort of set up a system for adjudicating questions for the incoming house. But from a formal point of view, the old House of Representatives dies. It's like Cin Cinderella, you know, at, at midnight, you know, poof, you know, she the, the, the, the gown turns to rags and the pumpkin, you know, the, the coach turns to a pumpkin, the horse turns to white mice. So, from a strict, formal point of view, at the strike of midnight the. Old House doesn't exist anymore, arguably. You could say, oh, well the Senate should oversee this and because they're a continuous body. They're sort of like the big sibling of the House in the same way that judges help pick jurors the Senate can kind of oversee the selection of the new House. But the text doesn't say that, in so many words. You can say oh well the president should really do this cause he's on the job 24 7 365. He's always in office. That's a structural idea. So, he should do that. But do you want the President really deciding who is really lawfully in the House or not? That seems a little awkward. So, if you just looked at the Constitution's text it's not so clear what should happen. Should it be the old house, should it be senate, should it be the president? In fact, in the Civil War, what happened is, actually, foreseeing that this might happen at the end of the war, the Congress, during the middle of the war, actually passed the statute. In which the House, the Senate and, the President all basically came to an agreement. And the agreement was On the first day of a new House, the clerks, the ministerial, the clerk, the ministerial officer of the old House would sit in the chair at the beginning and decide whom to recognize and not. And so really, it's that the old House kind of lingers a little bit in order to help select its, predecessors on day one. But it does so, thanks to a statute, that all three branches agreed to, the House, the Senate, and the Presidency. This statute, there's nothing explicitly in the Constitution that, that, that provides this solution But it's basically how our unwritten Constitution, has filled in, this very weird and peculiar gap in the written Constitution. Which is how does each house of represenatives at the beginning of a new congressional term, every 2 years, how does it boot strap itself into existance? How does it jump start itself, how does it get going, how does it give birth to itself. And theoretically it is a real problem, but as a practical matter it hasn't been because the branches during the civil war have come up with a very clever solution that has been in place ever since. It is part of our unwritten Constitution that supplements and complements and, and completes, the written one. Okay those are a couple of examples. In the next lecture I'm going to give you a few more. We're going to talk about what decision rule operates within each of these branches, should it be majority rule or super majority rule. In the house, or in the senate, in the judiciary. So we'e going to talk about for example, filibuster reform in the next session, and I'm also going tell you as I always do about the picture. so, can you figure out who is fellow is, and what he has to do with what we've been talking about. I will tell you at the end of the next lecture. So stay tuned. [MUSIC]
