Here I am taking the oath of office for the Presidency of the United States. That makes me the most powerful man in the country, maybe the world. The president is the leader of the United States. Or is he? Actually, the Constitution creates three different branches of the Federal Government, The President, Congress, and the Supreme Court. The President doesn't even come first in the Constitution, Congress gets that placement in Article 1. And if we look at the Constitution a little more closely, we'll see it's probably an over simplification to call the President, the leader. Each branch has its own powers and its own role. Each is supposed to lead in some ways or some circumstances. And, just as important, each is supposed to hold the others back sometimes. What are these different roles and these different powers? What is this system the framers designed, and how has it worked as the years have gone by? Those are the questions we'll talk about in this module. [MUSIC] We've talked about what the framer's constitution says, and we've talked a bit about how to interpret it. And now we're going to start looking at particular provisions in more detail. We're going to start by talking about the different branches of the Federal Government, the Legislature, which is congress, the Executive branch, headed by the President, and the Federal courts. Today is Congress day. What is Congress? Congress is composed of two houses, the Senate and the House of Representatives. As we've already seen, they're different in some ways. The Senate is supposed to represent states. Each state gets two senators, and in the original Constitution, senators are chosen by state legislatures. The House of Representatives represents the people. Representatives are elected by the people, and the number of representatives is determined by a state's population. That's where, as we saw before, the three-fifths compromise came into play. In terms of making laws, though the two Houses work in largely the same way. A proposed law, called a Bill, has to get a majority vote in each of the Houses. And each House has internal rules that make things even harder than this. The Senate, for instance, has the Filibuster, which lets the minority hold up voting unless three-fifths of the Senators want to move forward. But the Filibuster is not in the Constitution, and the Senate could get rid of it any time it wanted. What kinds of bills can Congress pass? A state legislature can pass any bill it wants, basically. Anything it thinks is a good idea. But Congress has only the specific powers set out in the Constitution. We will talk about some of those powers in more detail later, but the general idea is that Congress has power to legislate on issues that couldn't be left to the states. Interstate commerce for instance, trade among the states, if you leave that up to the states, they might try to favor local businesses. New York might say, no one can sell tomatoes from New Jersey. Because they want to help out the New York tomato growers. So Congress has power over interstate commerce. So to with foreign affairs. The United States must speak with one voice in foreign affairs, the voice of the federal government. Not 50 different states. So, generally, Congress can legislate when the states might not be able to cooperate. There's also an important addition to Congressional power, made by amendments added after the civil war, which let Congress legislate to enforce those amendments against the states. That means sometimes Congress can also legislate to protect Constitutional rights against the states. Back to the legislative process. Once a Bill passes both houses of Congress it goes to the President for signature or veto. If the President signs it, it becomes a law, if he vetoes it, it goes back to Congress. Congress can override the veto, it can make the Bill a law without the President's consent if it can get a two-thirds super majority vote in each house and of course remember the courts are also going to weigh in. Courts will eventually decide whether the law complies with the constitution or not and if they think it doesn't, they'll strike it down. They'll say it can't be enforced. The framers understood that not everyone is good. So one of the consequences of that is private individuals, they're not necessarily good. They might do bad things. You need government to control them. You need government, maybe, to protect you from the other private individuals who could do bad things to you, who might want to rob you, for instance. But, the people in government aren't all going to be good either, so we also need to worry about protecting you from bad people in government. And that's really what separation of powers does. Because it's easy to get one bad person, and if that one bad person is the President, they've got a lot of power. But even the President can't do things by himself. So in order for the government to take away your liberty. In order for the government to hurt you in any significant way, usually you need not just one bad person, even if it's the president. You'd need a bad president, you'd need a bad Congress, and you'd need bad judges. That's much less likely. So the idea here is, we know that people in government are not necessarily going to be angels. But we want to make sure that the government can't take away your rights, that the government can't hurt you in significant ways, unless lots of people in the government think that's the right thing to do. So what does this mean? All three branches generally have to agree for a bill to become law. I say generally because a veto can be overridden. And if a law's going to be applied against some person, say the government wants to lock you up for doing something, you do need the participation of all three branches. Congress must enact the law with or without the President's cooperation. The Executive branch must enforce it, they have to arrest and prosecute people who violate it. And then the courts must agree that the law is constitutional and that whoever if being charged actually did do the forbidden thing. Frequently the accused person can also bring in someone else. He can insist on being tried before a jury. And he won't be convicted unless some of his peers, the people, also agree. That's a lot that has to go right for the government. Why is it so complicated and difficult to make and enforce laws? It is and that's the point. What we're seeing here is the separation of powers within the federal government. The federal government has only limited power, and that power has been divided among the three branches. They have to cooperate to use it. If any one branch wants to stop the others, it usually can't. So no one branch of government can act by itself. How has separation of powers worked out? In thinking about some part of the constitution, it's useful to ask three questions. First, what were the drafters worried about? What was the danger they saw? Second, what device, what mechanism did they use to protect us from it? And third, how has that worked out over the years? For separation of powers, the first two answers are easy. The drafters were worried about concentrating power in the hands of one branch of government, or even one person, someone like King George. They had experienced that concentrated power and they didn't like it. So they separated power. In order to protect individual liberty, and also to protect the sovereignty of the states. The senate, remember, is supposed to represent the states. Now the last question, the third one, is a little harder. There are two things that have made separation of powers work differently from how the framers anticipated. The first one is the 17th Amendment which took selection of Senators away from the State Legislatures and gave it to the people of the States. We will talk about that more later, but the simple point is this. If State Legislatures pick Senators, Senators will probably care about States rights, States interests and State authority. Because state legislators care about those things. But if the people picked senators, senators are much less likely to care about the states, because the people generally don't. So now the senators represent people, not states. And that makes the federal government very different. In terms of how much weight it gives to states' interests. Much less now than the framers anticipated. But that's a Constitutional amendment, so maybe its consequences should just be accepted. There's something else that messes up the framer's design though, which isn't a Constitutional amendment. It's the party system, the political party system. The idea behind separation of powers is that the different branches of government will see each other as rivals. Each will try to protect its powers, each will check and balance the others. So members of congress will feel a sense of loyalty to congress. The President will feel a sense of loyalty To the office of the presidency. We could call this institutional loyalty. An institutional loyalty may exist, but it's much weaker than party loyalty. The framers didn't think about political parties, but they mess up separation of powers. Here is how. Suppose that a member of Congress and the President are members of the same political party, both Democrats or both Republicans. Now, when that member of Congress looks at the President, she doesn't see a rival. She sees the captain of her team. So, a congress controlled by the same party as the president is much less likely to check or balance that president. And the opposite is also true, if congress and the president are controlled by different parties, you might get too much checking. You might get congress trying to block the president, not to preserve the balance of powers. But just to make the president fail so that Congress's party can win back the presidency in the next election. The party system in short, tends to get us too much or too little checking and balancing. What can fix that? Well, it's a problem that comes from political polarization. From thinking about politics as if it were a team sport, rather than a shared attempt to promote the common good. So one thing we could do, probably the only thing we can do, is to try not to think about it that way. To understand that we are not red or blue, but red white and blue. We are not democrats or republicans, we are Americans. And if the Constitution is going to work, we must work together. [MUSIC]
