Welcome back. In our previous sessions, we've been talking about the written Constitution. We're taking a, a kind of a a leisurely stroll, a guided tour, if you will, through the written constitution, from start to finish. We've started with the Preamble, we're now in the middle of our discussion of Article I, and in later lectures we'll talk about Articles II, III, IV, etc. in textual order. We'll work our way through to the end of the written Constitution, and then we'll start strolling through the amendments in textual order, which is also chronological order, since the amendments have been added in chronological sequence. The guidebook for this leisurely tour is a textbook that I wrote in 2005. It's called America's Constitution: A Biography, it's not required reading for the course, but it is available to you, and if you want more details about the things that we're talking about in these lectures more documentation and elaboration and qualification, citation, all of that. Then do feel free to pick up a copy of America's Constitution: A Biography you can get it at most public libraries it's also available in many bookstores online. I think a paperback copy will run you about $15 or so. and, and that book, written for you all, for a, a general audience tries to, to as we've been doing in these lectures, walk you through the written Constitution in textual order. There are 12 chapters in that book, and we've been going through the book, in effect, chapter by chapter. Each chapter has a picture. And I think that picture is worth a 1,000 words. It tells a story. Chapter one opened with a picture of the first newspaper printing of the proposed Constitution in September 1787. I think that picture captures some big themes that people were paying attention to the proposed Constitution. That the newspaper published that immed-, immediately after the Philadelphia Convention went public with its proposal. That newspaper editors understood the significance of the preamble in particular,, which appeared in bigger type, and you see the great themes of the Constitution in the Preamble it seems to me. That's why we spent a whole chapter really on, on a single sentence. What are those themes? Democracy, we the people of the United States. geography, it's the people of the United States, of a continent, of a particular place. It's not we the people of, of the world. And indeed the, the national security is a third and related idea. It's, it's us, it's we, and it's us to some extent against them. Against the British or the Spanish, the French, the Native Americans. This is about the people of the United States creating a project. Ordaining and establishing a constitution in a very democratic way. Again that democratic idea in order, among other things, to promote the common defense. So again, you see this national security idea. And you see it all in this, in this opening census. National security, common defense, will help us secure the blessings of liberty to ourselves and our posterity. By keeping the old powers of Europe at bay, we will be, we and our descendents will be free. We and our posterity will enjoy the blessings of liberty. And that was the Preamble, that was chapter one. And I think you see those themes in that opening picture. Chapter two was about the structure of Congress. It was about the opening sections of Article I of the Constitution. The Article about the Legislature. And it was about the structure of the Congress of the legislature. Its basic size. Its shape. For example, it has two houses. It's got a bicameral, symmetric shape. It we talked about the apportionment rules in the House and, and the way in which the Senate was apportioned. The House is based on population, the Senate, each state, regardless of population, gets an equal say. We talked about eligibility rules for members of the house and senate, who gets to pick members of the house in the senate the terms for which the terms of office that these lawmakers serve. So, we talked about the basic structure of Congress and we began that chapter of a picture that again is worth 1,000 words. A picture that shows a big building. It's a big building because it's designed to be the people's branch of government, very distinctively. And indeed, Article I very early on echoes the preamble in talking about a House of Representatives from the people. When you look at that big building, which is to make sure that the legislature is going to be of a sufficient size to be truly representative and democratic of the citizenry is that building also needs to be big enough to house public galleries. Galleries of the people who can watch the peoples' business being attended to. So it has to be big enough for that. You see in the building itself the bicameralism. It's kind of a symmetric building with a House on one side and a the, the Senate on the other. I think in our conversation about Article I, you saw also some of the, the themes of, of national security. The debate about the size of Congress, for example. It needs to be democratic, but you also want to make sure that the people there actually have some sense of, of the world. They have to be a select group, an elite group of, of some sort in order to sensibly fashion American foreign policy defense policy and the like. So you don't want the Senate too big because it's going to need to be composed of people who really do have a special understanding about the world. We talked about how, for example, you want the longer terms of office for senators than in, in, in states because, again, of the need to develop some expertise. Geography fits into that story too. Just looking at at Article I you, you see for example that they're not annual elections for congress. Every two years for the House. And that's partly because it, it takes awhile to get from the edges of the continent to the, the center. The, the union is, is much bigger of course than an individual state. There's more travel time that will be required. That was the basic size and structure of Congress of Article I. Now we're segueing going into a new chapter talking about the basic powers of, of congress and we begin with a picture. And we're are moving from the outdoor indoors and here you see Henry Clay. He's a Senator. He's addressing the United States Senate in the antebellum period. and, and, we see a couple of interesting things in this picture. We see that there is a public gallery up in the balcony. So, the people are watching. The Senate didn't begin actually as an open body. The House was open to the public from day one. The Senate soon followed suit in the mid 1790s and never went back. So the people are watching the people's business being done. Uniquely, I think, among the three branches if the Congress is an entity very much open to public inspection and deliberation. That's less true of the Executive Branch, a lot of things that executive officials do they do in secret espionage and, and, and and of negotiating treaties. All sorts of stuff that's not in the public eye. Planning de-, de-, de-, defense tactics. Lots of stuff that happens in the Executive Branch. Thinking about whom they're going to nominate before they name the person. A lot of things in the Executive Branch are more secret. The public isn't there, watching the president at every moment in the Oval Office. But here, they're watching the senators. Now the senators also, sometimes will be meeting in private, in cloaked rooms and the like, but, but the people are watching when the senate is engaged in debate, deliberation. And this is the age, especially the antebellum era of, of America of a famous senatorial oratory, of the great speeches that are, are, are, are being offered and listened to. So, Henrik Thai is a great orator. In this chamber actually we see Daniel Webster is there, John C. Calhoon is there. This is a reminder that Congress is a speech spot. It's a, a parley place, a place for political discourse. In England, they call the Legislature the Parliament, from the French parler, to speak. So this is a place where not only people vote, they speak and they are listened to by the public. And indeed in Article I, there's a push, it, it, we can think of it as one of the great powers of Congress. It's not always conceptualized that way, but there is a clause in Article I that affirms the absolute, quote, freedom of speech and debate in the House and the Senate. And, the idea here is that whatever Henry Clay or Daniel Webster or John C. Calhoun says today says then or today Mitch McConnell or Harry Reid, whatever a Senator says, whatever a Representative says on the floor of the Senate, on the floor of the House is absolutely sacred free speech. It cannot be punished outside that body. Now, if you misbehave and say things that are inappropriate, the chamber itself might hold you in contempt or might discipline you, but you can't be sued in a court for libel by a private person who doesn't like what you said about him or his industry on the floor of the House or the Senate. You can't be put in, in prison by judges or the Executive Branch. Absolute free speech and debate in the House and the Senate, as there was absolute free speech and debate in Parliament in England. Now in America, as, as we're going to see in later lectures not just the our citizen not just our representatives, but the citizens themselves had speech and debate freedom. Wi-, the First Amendment is the next free speech clause that’s get, getting added to the constitution, and it’s going to talk about, again, this idea of freedom of speech, just like freedom of speech and, and, and debate. But the rights of the citizenry are a little different than the rights of law makers. There is an even more absolute freedom of speech and debate in the House and the Senate. No liable law at all. If in the real world a citizen gets up and says something that is intentionally and maliciously false. It gets up and just lies to someone's detriment. There are libel suits that can be bought, civil lawsuits for, for damages that can be brought. But there's a more absolute freedom of speech and debate in Congress under the Constitution. So this is a very special speech spot, and we'll talk more about that freedom of speech idea in later lectures. Now, I want to move from Article I, Sections V and VI that talk about some of the special immunities and privileges of members of, of Congress to Article I Section VIII, the powers of Congress. Article I, the first Article, is the longest article. Section VIII is within that the longest section. So now were going to be talking about the longest section of the first and longest article of the Constitution, so something important here is going on. The important thing is that the powers of Congress are very broad, but still enumerated, finite, they are not infinite. Now, the question of how much power the central government should have and within the central government, how much power the Legislature should have. These were really important issues in the 1700s and they remain so today. Let me just remind you that the British Empire basically breaks up, in a sense over this question. A question that's called the question of federalism in part. What should the central government do, what should be left to the individual component units? So, in the 1760's and 1770's the question was, what could Parliament do, and what could Parliament not do? Before the 1760's, there had been a kind of a working understanding in America, that Parliament could regulate imperial affairs, trade within the Empire, foreign affairs between the Empire and the other powers of the world, France and Spain and so on. So Parliament could regulate that and local governments, the colonies, would basically deal with taxation and lots of in-, internal matters. But then, beginning with the, the Stamp Act, or the Sugar Act and the Stamp Act and the Townsend Duties and, and the coercive acts in the 1760s and 1770s. Parliament get, begins to pass all sorts of laws that, that, it, are designed to raise revenue from the colonies to regulate internal matters in the colonies, and the col-, colonists pushed back. They say, wait a minute, you can't do that. And the British say well, listen if we can legislate for anything in the Empire, like foreign affairs like imperial trade, we can, we can regulate anything, we can regulate everything. You can't sort of, draw lines and say well, the central government can do only some things and, and other things have to be reserved to the individual colonies. Well they commonly thought somehow you could try to codify, constitutionalize if you will, the working arrangement that had existed before the 1760's. The Empire, the Parliament will deal with certain central matters and other things should be reserved to the individual colonies they. They tried to sort of propose a constitutionalization, a codification of that working understanding and the Brits said no Parliament must be supreme in all cases whatsoever. And take it or leave it. And the American Revolution there we said, in that case, we decide to leave it. Now the Articles of Confederation soon emerged. How are these individual colonies going to arrange matters among themselves, because you're going to need some central coordination for war and foreign affairs and all the rest but on the other hand the colonies, individually, want to retain certain powers. So, so how are going to constitutionalize federalism after the independence? And what happens is Articles of Conferderation emerge. And the central government, Congress, are given certain powers, basically of, of, of treaty making and war and peace, directing common defense, and almost everything else is reserved to the states, and there's a, a clause that says, everything that the ederal government, that the central government does has to be expressly enumerated, listed in the Articles of Confederation. And everything else is reserved to the states, each of which retained its freedom and, and sovereignty and, and independence, except for those few things that have been expressly delegated to the central government and here's now the dilemma. Parliament was too strong and the colonies revolted. The Confederation Congress is too weak to do all the things that need to be done. So now the Constitution is going to come along and try to rebalance the thing. Try to get it just right. And that re-balancing occurs, most obviously in Article I, Section VIII, listing the powers that Congress has. now, the word express is not going to expressly isn't going to appear in Article I, Section VII so Congress is going to have, not only the listed powers but also certain implied powers that, that flow from a fair reading of, of, of the listed powers. So that word, express, isn't going to be there. It caused problems in the Articles of Confederation. So, let's look at that list of expressed powers, Article I, Section VIII. And let's just kind of quickly start to work through it. And then in our next lecture, we'll continue to, to work through Article I, Section VIII, and the rest of Article I. Here's how it begins. The Congress shall have power to lay and collect taxes, duties, imposts, and excises. To pay the debts and provide for the common defense and general welfare of the United States, okay. So, right off the bat, Congress is going to be able to tax us up and down and sideways. Taxes, yes, but not just taxes. But duties and imposts and excises, we've just fought recently an anti-tax revolution, and now actually, the constitution is proposing a pro-tax regime. What's up with that? What's up with that is, this new congress is representative. Ordinary people are going to be able to vote for it. The America Revolution, the, the, the, the rally cry wasn't no taxation period. No taxation exclamation point. It was no taxation without representation. Parliament didn't represent ordinary Americans. Colonists didn't get to vote for Parliament, so Parliament couldn't impose taxes on ordinary colonists. Revenue measures. That was the idea of the American Revolution. Since Congr-, since Parliament doesn't represent us, Parliament shouldn't tax us. But now this new Congress is going to represent us so it does have legitimacy to impose taxes on us. Remember, the Articles Confederation, excuse me, under the Articles of Confederation, the Congress didn't directly represent individuals, only the states were represented, qua states, as states, so only the states could be taxed. And the problem is, they didn't pay. When they were asked for money, they didn't pay up. Now, individuals are going to be able to be taxed, and when they import goods through the customs house, or in other ways. And if the individual doesn't pay, then the federal government will be able to, to make that individual pay. That, that, that's a fight that the Federal government can win. It's legitimate because people are represented. So, in some ways, not the absolutist power that Parliament had to impose taxation without representation, and not the inadequate power under the Articles of Confederation, really the absence of a power to tax, but actually now a power to tax individuals by a genuinely representative body. And why do we need that? The first sentence of the longest section of the longest article tells us why. We are going to, Congress is going to need to have that power to, they can collect taxes, impost, du-, du-, duties, and excises. Why? To pay the debts and provide for the common defense and general welfare of the United States. Notice the echo of the Preamble. Common defense, general welfare. Here's why you have to pay, because we are actually going to need national security, that's going to require an army, armies need to be paid, they need to have bullets and, and shoes and and supplies. That's going to cost money, so and, and you, you Americans need to support a constitution, the federalists argue, you're going to be taxed under this Constitution, but you're going to be taxed by a representative body for national security. So in that first sentence of Article One, we see a continuation of some of the great themes of, of the Preamble of the Constitution as a whole democracy and national security. In our next lecture we'll work through the rest of Article I, Section VIII and indeed the rest of Article I, and see these great themes of national security and, and geography and democracy playing out. We'll also talk a little bit more about slavery in Article I. See you then. [MUSIC]
