An introduction to the main themes of the American Constitution—popular sovereignty, separation of powers, federalism, and rights.
New Rules for a New World, Part 1
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From the course by Yale University
America's Written Constitution
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Yale University
America's Written Constitution
201 ratings
From the lesson
New Rules for a New World
In this module you will learn how geography, democracy, wealth, and race affected the structure of our legislative branch. Prof. Amar will explain the underlying factors behind decisions on Senatorial term limits, age qualifications, salaries and much more.
Meet the Instructors
Akhil Reed AmarSterling Professor of Law and Political Science
Yale Law School
[BLANK_AUDIO] Welcome back. In our previous sessions, we talked about the Constitution's first sentence, the preamble and its great themes of democracy and geography. We, the People, the democratic idea of the United States, a geographic idea. Today, we're going to begin a conversation about the next section in textual order of the Constitution: Article One. Article One is about the legislature, about Congress. And we'll begin our conversation by talking about the basic structure of Congress. And then later on we'll start to talk about some of the powers of Congress.
Here are some of the big themes. They're the big themes, really, of, of the preamble. Democracy, geography, we're also going to talk about slavery and how it was built into the structure of Congress, and into the structure of Article One.
Who isn't counted, or who's counted in unusual ways, distinctive ways, important ways? Those are going to be some of the things we'll talk about in our conversation about the basic structure of Congress before we move on to conversation about the powers of Congress. So,
couple things. One, size matters. We talked about how the preamble was printed in broader ty, in bigger type than the rest of the Constitution when various newspaper publishers ran copies of the Constitution when the document went public. Size matters, here, also. We have on the screen a picture of the congressional building in 1846. This is the first photograph of the Capitol building. And I hope you notice, just, quick inspection, it's large and we're going to talk about why it's large. The White House, for example, is not large. So, what's up with that? Why is the Capitol building large and the White House, not so large? We'll also talk about location. The preamble came first in the document, locationally. And I thought that was and continue to think that's significant. It's first because it's particular importmant particularly important. Why is the legislature Article One? Why is Congress Article One?
Why is that located in the text where it is? Article One is also not just the, the first article in the Constitution, it's the longest. So textually its size is, I think, a, an interesting indication of significance, as well as the size of the building itself. Let's start with the word, Congress. Why did they pick that word? Well at one level it's designed to ease people's minds. Oh, this is the same word that we've used for the preeminent body under the Articles of Confederation. there, the, the central organ of, of federal power, under the Articles Confederation, was known as the Congress. And so they used the same word in the Constitution. Just as they used the phrase the United States, in the Confederation, the Articles of Confederation, and they used that phrase, the United States, in the Constitution. But in the Constitution, the United States means something a lot, a little different. It's far more united than it was under the Articles of Confederation. Remember, under the Articles of Confederation, that was just a league or a kind of treaty and, and states were, in the end, free to, to leave that league or treaty. Eleven states, in effect, left the Articles of Confederation, to form the Constitution, initially leaving Rhode Island and, and North Carolina behind. So the United States, under the Articles of Confederation, are sort of a looser entity, more of a league, a confederation, a treaty. That very same phrase, the United States, in the Constitution, means something much stricter. Once you're in, you're in, for geostrategic reasons that we talked about in previous sessions. So, too, this word Congress, it's a gesture back toward the Articles of Confederation, but it means something rather different. In the Articles of Confederation, there was one body that basically wielded all central power. In the Constitution, Congress is merely one of three bodies that are the central federal organs. There's Article One but there's going to be an Article Two, the Presidency, and an Article Three, the judiciary. Under the Articles of Confederation, the, the document doesn't even describe the Congress, quote congress, as a legislature. It doesn't describe the output of that body as law. Law that would be binding on every court in America, state or federal. The Articles of Confederation don't say that. The Constitution will, actually, describe, and Article One does describe, Congress as a legislature, as a law making body. And so that's one important difference. And and, and Congress is going to be vested in, in Article One with legislative power, as distinct from executive power, in Article Two, vested in the president, and judicial power, in Article Three, vested in federal courts.
Now this idea of Congress as a lawmaking body is a little different than Congress under the Articles of Confederation. There, Congress was more al, almost of an executive council, a war council. And it wasn't so obvious that, basically, it made law as such. now, the Articles of Confederation said that Congress would only have certain powers that were expressly given to it. That word doesn't appear in the Constitution. Congress, under this new body, they have it, powers expressly and impliedly given to it. So that's going to be another important difference. And we'll talk about that in later sessions, when we begin to talk about the particular powers of, of Congress. And, by the way, some of those powers are new powers, vast new powers to directly raise an army, a central army, to have taxes imposed directly on individuals. To regulate interstate commerce and foreign affairs to regulate federal territories. So, these are to monitor whether each state has a Republican form of government. These are going to be vast new powers given to this new Congress. And by the way, when we look at this picture, we see there, kind of, are two wings of Congress, it's going to be a bicameral body. There's going to be a house of representatives, and a senate. That's different than the Articles of Confederation, where you had a unicameral body called Congress. Now the Senate, in some ways, is going to look a little like the old Congress under the Articles of Confederation. It's given a new name, it's now called a Senate, and that new name suggests a little bit more independence and detachment. Here are the ways the Senate looks like the old Congress under the Articles of Confederation. Each state, whether it has a lot of people or few people, is going to be equally represented. and, the Senate is going to be picked by state legislatures, as was the Congress in the Articles of Confederation. So the Senate is, in a way, the continuation of the Congress in the Articles of Confederation, but even it is going to be different in several ways. It has a different name and a name suggesting more independence from state legislatures. And indeed, this new Senate is going to have a much longer term, six years rather than a single year. These new senators are going to be eligible to, for, for perpetual reelection. There were mandatory term limits under the Articles of Confederation. You had to rotate out, every few years, unless you'd become too attached to the national government under the Articles of Confederation. But on the Constitution, you can be a senator, basically, for, for decades. This new Senate is will be immune from legislative recall. Whereas in the old Articles of Confederation, the Senate was like a set of ambassadors that were sent to the, to the, the na, the national capitol, and they could be recalled at anytime by their state legislative masters. This new Senate's going to be directly paid by the national government. so, in all these ways, the, the new Congress is, is is different than, than, than the old Congress. Of course, the House of Representatives is going to be directly elected by voters. That wasn't true, of any part of, of government under the Articles of Confederation. There wasn't direct participation by the people in, in the old Congress, but there will be direct participation in this new body. So, in short, the old Congress was a collection of state's men, and the new Congress is going to be an assembly of statesmen.
so, let's talk, just a little bit, about this bicameral idea, the idea that something is going to have to pass both House and Senate in order to be law. That bicameral idea, built on state constitutions, most of which had legislators with two houses. Pennsylvania didn't, Georgia didn't, but in all the other colonies turned states, there were bicameral legislators. Mimicking perhaps, the, the system in Great Britain, where there was a, a bicameral of parliament. A House of Commons and a corresponding House of Lords, a lower house and an upper house. So, those are basic models for the new Federal Government, the English model, the State Constitutional model, and they're going to have bicameral legislature. So you might think, oh they're doing that so that there will be fewer laws overall, because you have to pass both the House and the Senate in order to become a law.
But, a bicameral legislature doesn't automatically guarantee fewer laws. Yes, if the House wants law A, and the Senate wants law B, maybe nothing passes. But maybe, you get a big log-roll, in which the House and the Senate kind of mush, throw everything into one big package and you get A and B. So there's nothing, necessarily, in a bicameral body that will mean fewer laws rather than more laws. also, by the way, if a certain bad law is on the books if bicameralism did make it harder to pass a new law, well, maybe then you're stuck with some old laws that you don't like. So, I'm not sure that the conventional view, that bicameralism is about the idea of less law, fewer laws, makes sense. But here's one, I think, a thing that they, that they did believe. That a bi camera legislature would pass fewer arguably unconstitutional laws. Because if either House or Senate thinks that a law is unconstitutional, it should just say no, and never vote for it, and not vote for it even as part of any log-roll, because they've taken oaths of office to support the Constitution. And it would dishonorable, it would be a violation of that oath idea, to vote for an arguably unconstitutional law. And so, if either the House or the Senate thinks that the laws are arguably unconstitutional, then maybe it doesn't pass. If either the House or the Senate thinks that a law is deeply unjust, well, then maybe that's something you can't log-roll about. so, I'm not sure that you get fewer laws, overall, with a bicameral legislature. I think the idea, though, was you get fewer arguably unconstitutional or arguably unjust laws. And of course, it's not just the House and the Senate who are going to weigh in on that, the president, if he thinks, independently, that a law's unconstitutional, he's going to be able to veto that.
We'll talk about that more when we get to the presidency, which is Article Two of the Constitution. Course, we'll also, when we get to Article Three of the Constitution, the judiciary, talk about how the judiciary can, in effect, nullify a law through a thing called judicial review if it thinks that law is unconstitutional. So, even if the House thinks it's okay constitutionally, and even if the Senate thinks it's okay uncon, constitutionally, that doesn't end the conversation. The President's still going to, typically, need to sign it or else have his veto overridden by two thirds of each House, we'll talk about that more.
And of course they're going to be able to weigh in. Okay, so that's a little bit on the basic structure of a bicameral legislature. And you see that bicameralism, just in this picture here, a House and a Senate. Now, I said size matters and, and you see that this is a very big building. Why is that? Why is it so much bigger than, let's say, the White House? It's vastly bigger than Independence Hall, for that matter. If you've ever been to Washington D.C., you know what I'm talking about because this is, this is a massive structure.
And, one of the most important issues at the founding in this great ratification conversation that we talked about in previous sessions, this preamble conversation, where We the People of the United States, in the1780s, decide on the Constitution. One of the biggest issues was the size of Congress.
So Article One, early on, says that that the House of Representatives will be elected by the people of the several states. So the, an echoing of that preamble idea.
And the concern was, if the House of Representatives was too small, maybe it really wouldn't be representative of the people. And indeed, probably the biggest objection of skeptics of the Constitution, the so-called anti-federalists, probably their, their, their, their biggest objection was that the House of Representatives, on their view, was too small to be truly representative. Their other big anxiety is about the absence of a bill of rights. But the absence of a bill of rights is connected to this because basically there is a distrust of the federal government. And there's a distrust of the federal government, in part, because they're worried that the House of Representatives won't be representative enough. So what actually did the Constitution provide for the, for the House of Representatives? It said that there had to be two
senators per state regardless of, of, the population of, of the state but, for the House of Representatives, it's going to be proportioned according to population. Each state will be guaranteed at least one member of the House of Representatives. and, initially the number of members of the House is not to exceed a certain number. and, and they provide for 65 members of the House of Represenatives before the first census comes along. And that there must be at least one representative per state. And no more than a certain number of representatives. And the anti-federalists say, wait a minute, you know, you've provided a maximum but, but the minimum is one representative per state? So, so couldn't a later Congress actually reduce the size of the House of Representatives to 13 representatives, one per state, make it even smaller than the Senate? And if you had 13 representatives, that would mean a quorum is seven? And that would mean that a majority of the quorum is four? And yes, you've said, we'll have 65 at the beginning, but even 65 seems, the anti-federalists say, really small. So 65, and that means 33, a simple majority, would be a quorum? That would mean 17 people would be a majority of the quorum. 17 people for the, for the entire continent? That making a decision as the so-called People's House? 65, wow, that's small, said the anti-federalists. Look at state legislatures, only two states have, have state assemblies that are that small. The Virginia House of, of Delegates is four times the size of the, of the U.S. House of Representatives. Massachusetts is, is three times. If you look at, if you count up all of the state legislators across the country, there are 1,500 state legislators. And now, you're proposing that, that same continent is going to be governed by a House of Representatives with a mere 65 members.
They say, look, as a practical matter, that's going to be way too small. Only great men with big reputations and fat wallets are going to be able to have the name recognition to get elected over the big, big geographic districts that you, that, that you'll have to have in order to have a House of Representative so small. Our state legislatures have a lot more people. They come from the neighborhood. We know who they are. They don't go far away, then they come back. They're going to be more representative than this so-called House of Representatives. That's what the anti-federalists feared. And the federalists said, wait a minute, maybe, maybe we miscalculated. Yes, we said 65, initially, but that was just temporarily until the first sentence. And by the way, here's how we came up with 65. 65 members of the House, plus 26 Senators. That's, 26 Senators, because two for each state, that's 91. That's the size of the Congress under the Articles of Confederation. The Articles of Confederation had a Congress in which each state sent between two and seven delegates. If each state had sent seven, they almost never did, but if each state had sent seven, 7 times 13, 91. And by the way, they almost never show up under the Articles of Confederation because a state gets one vote whether all seven of its delegates show up or just a few delegates show up, so why pay the extra expense for those extra delegates? So, we're going to have 91, at the beginning, and that's what we have under the Articles of Confederation. And those 91 are going to be much more likely to show up because every extra Congressperson who shows up, that's an extra vote, in the House of Representatives for that state, that's an extra vote in the Senate for that state. So so if 91's too small, boy, that was a problem in the Articles of Confederation, and and these 91 are going to be more likely to show up. And and most importantly, this is just a temporary measure until we get a new census in place, and then, the House of Representatives is going to be much bigger, more representative, we promise. Now, if you think the Constitution is just a piece of paper, the piece of paper doesn't say that the House of Representatives is going to get much bigger, fast. But if you see the the Constitution as a deed, as well as a text, a deed reflecting this epic conversation that We the People had in 1787-88. Part of that deed, part of the deal that, that We the People made amongst ourselves is that the House of Representatives again, let me remind you, it talks about a House of Representatives being elected by the people of the several states. Again, that idea of the people. We the People of the United States kind of agreed amongst ourselves that this House of Representatives, to be truly representative of the people, would need to be much bigger than 65. And indeed, as soon as a first census came along, Congress did get much bigger and, and it's now it's never gone down to 13. It's never really shrunk in size, as the text might have permitted, but as the deal did not permit. So, We the People of the United States, from the preamble, are particularly and distinctively represented in a House of Representatives, elected by the people. and, and one of the biggest issues is this issue of size. That's not the only thing that matters, for the Congress, for the House of Representatives. And in our next lecture we're going to talk about some of the other important numbers in the Constitution. How often are these con, Congressmen elected? Who pays their what's their salary and who pays it? What sorts of qualifications do they have to have? Age qualifications, property qualifications, or not? And we'll also begin to talk about who's not represented. Who doesn't get to vote in the process. We'll talk about slavery, so stay tuned. [MUSIC]
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