[BLANK_AUDIO] Welcome back. We've been walking through the original Constitution in textual order. We've covered the Preamble. We've covered articles one, two and three. The Legislative, Executive and Judicial powers of the United States. We've talked about article four which focused on states and territories on the relationship, the horizontal relationship among the states. And the significance of the territories and the way in which the Federal government is going to have important powers over. The territories to make those territories eventually republican states admitted on equal footing with the, the original 13 rather than com acting as a permanent colonizer over the west And how the Federal government will also have the power to make sure that individual states maintain basic standards of, of Republican government of democracy, a fair elections. And free speech in order to protect the people of each state from a possibly tyrannical government, a military coup or, or something like that. To protect the people of each state against its own government if that government sort of fails to maintain minimum republican standards. And in so doing, also protect neighboring states because tyrannical, monarchical, un-republican regimes are threats not just to their own people but to their neighbors. That's what. History has taught us. Going all the way back to Philip of Macedon, Alexander's father who threatened the, the surrounding democratic regimes in, in Greece And also protect, by protecting the republican government of each state the Federal government will be able to protect, basically, its own foundations because the Federal government sits atop state building blocks. State election law defines at least in the first instance, Federal election law for the House of Representatives. State legislatures are picking Senators at the founding. State law is determining the the selection of elector electors for the electoral college. And if states are screwing up basic electoral functions, that's going to compromise the fundamental foundations of the Federal government. And, and that actually did happen with the Civil War. And again, arguably, in the 20th century when states were allowed for before a while. To, to run shoddy elections and to prevent people from voting who had a right to vote and once again Federal intervention was required the second reconstruction in the 1960's building on the first reconstruction of the 1860's. So that's what was talked about thus far. The preamble, how the Constitution is ordained and established. Articles one, two and three; legislative, executive, judicial power. Article four, states and territories. [SOUND] We've now made it to the end of the original Constitution, articles five, six and seven. And that's what I'm going to be talking about today and in the next lecture. These three concluding articles of the Constitution are quite short. Are united by a theme of basically Constitutional supremacy. They explain why and how the Constitution actually takes priority over other kinds of law. In fact the, they refer repeatedly as. Did the preamble to the Constitution, remember the preamble talks about how this Constitution is or to be ordained and established articles five, six, and seven provide further reflection on the nature of this constitution. Let's start with article five, it talks about how this Constitution is to be amended and they're basically under article five, four amendment pathways, two different ways an amendment can be proposed and two different ways an amendment can be ratified. It can be proposed and this is in fact how all the amendments thus far have been proposed by Congress. 2 3rds of the House, 2 3rds of the Senate. So a special super-majority vote from Congress suffices to propose amendment. The president actually plays no role in, in the process I, I partly, I think the idea is the amendment process is just a different kind of process than the enactment of ordinary legislation. So, 2 3rds of the House and 2 3rds of the Senate suffice to put an amendment out there to be ratified by the states. And in order to succeed under the expressed terms of article five a three quarters of the state have to ratify and and they can ratify either by state legislatures or if Congress so provides special state conventions. Can be the ratifying bodies specially left to state conventions but again the rule is 3 quarters. So two different ways an amendment can be ratified either by state legislatures or by state conventions and all the amendments thus far, except one, the repeal of prohibition, the 25th amendment, actually the 21st Amendment, have been ratified by state legislatures. So but two different ratifying mechanisms but 3 4ths of the states. Each state counted the same as any other state and two different proposing mechanisms. Congress 2 3rds of the House, 2 3rds of the Senate. There's another proposing mechanism that's never been used. If enough states ask Congress is supposed to call a proposing convention. Maybe con the model of the Philadelphia convention. To propose amendments to the Constitution that, again, presumably would go to the states for, for ratification. So two different pathways of proposing a convention. A model that has never been used and a congressional proposal model which has generated all of the 27 textual amendments thus far. And two different ratifying mechanisms. State legislatures, 3 quarters of them, all the amendments except the repeal of prohibition, the 21st. And if Congress so provides, it can instead though provide for state ratifying conventions. Special, special ratifying conventions to, to, to ratify a proposed Constitutional amendment. So, so what to think about article five? I think, several things. One, arguably the rules of amendment are the most fundamental, most important, element of the Constitution. They specify the rules by which everything else can be changed. They operate on a, a higher plane if you, if you will. Or maybe, if you want to think of it as a deeper, a more fundamental level than everything else in the Constitution. These are the rules by which almost everything else in the document can be modified. And article five, I think, did a pretty good job of it especially when we compare it to its predecessors. The Greek regimes that had democracy, even if they, they had a consti, democratic Constitution, they often didn't have good mechanisms for Constitutional amendment. The British Constitution to the extent that it was claimed to just be inherited from the ancients had no kind of it's unwritten and no express provision four amendments now. Parliamentary, sovereignty as a practical matter might mean that par, anything parliament wants to do. It can do, but then that raises a different problem. Do you really want to allow your ordinary legislature to modify the rules any time it wants? To modify the rules for its own election? To, for example, end regular elections or expand its term of office a three-fold? Or what have you. Let's think about the Articles of Confederation. Its biggest flaw was that as a practical matter, it was unamendable. All 13 states had to combine, and because you could never get all 13 states to agree on anything, Rhode Island would always opt out, or if not Rhode Island, somewhere, someone else. Basically, the framers at Philadelphia were forced to work outside the Articles of Confederation framework. because, Rhode Island refused to even to show up at Philadelphia. So, if every state had to be onboard, it was just a nonstarter. And so here's actually what the framers of the Constitution said to their critics. The critics said. Listen. You know, you forgot a Bill of Rights. The Congress, the House of Representatives is, is too small. They're not insufficient protection for a, for a jury trial. What about unenumerated rights? We've got lots of objections to this thing. And the framers said, the supporters said, well maybe you're right. But here's one thing that we got going for this plan. It's fixable. It has within it provisions for its own modification. And the Articles of Confederation as a practical matter aren't fixable. So, vote for the Constitution now. Once we get it up and running, we can have amendments and, and we can fix the thing and we promise. Save modererate federalist that will work on you on that. So, in some ways, that, that, that the amendability of the Constitution is one of its biggest selling points. Now compare the Constitution to the state Constitutions, the Federal Constitution. Some of them didn't have any provisions for amendments. And presumably the Constitution can be amended by the same mechanism by which it was ordained and established but that wasn't so clear at least textually. Some of the states basically allowed the legislature to amend by ordinary statute so then in what sense is the Constitution sort of higher and deeper then ordinary law. Fundamental. A law that limits even the legislature, that stands outside the legislature. Other states provided for special legislative votes. So you needed special legislative majorities but only the legislature could amend. Well, what happens if the people want a Constitutional amendment that would limit the legislature? If the legislature has a monopoly on amendment, it's just never going to propose, maybe, such a, things that it doesn't like that would limit its own power. Other states said, well, there can be amendments, and they can occur outside the legislature, but only at certain specified dates. Well, what happens if you want to need to make an important change outside of those states? And indeed, in ratifying the U.S Constitution, a bunch of states in effect were modifying their state Constitutions. And they were doing so outside the framework of their member provisions, outside the date clauses, for example, of, of their amendment provisions. So, none of the states really had a some states provided for a special convention mechanism for Constitutional amendment outside the legislature but didn't have enough details on how that convention was going to be was going to operate. So judged against the baseline of Greece and the British Constitution and the Articles of Confederation and the 13 state Constitutions the, the, the U.S Constitution's article five is, is fairly impressive. It doesn't, it has some flaws. It doesn't quite say how that proposing convention which we've never had, is going to work and that's a big can of worms. For example, how is it going to be apportioned? On the model of Philadelphia, one state, one vote. Or on the model of the House of Representatives, a sort of proportional. Who is go, going to decide what voting rule, not just a proportionate rule, but voting rule that convention adopts as it's simple majority, 2 3rds something in between. You know, how are the delegates to that convention going to be picked? Will Congress lay down the rules? Will the state legislatures lay down the rules? So article five is not a model of precision and clarity and, and but compared to its predecessors it's not, not a bad first cut. Critics have said article five is too, it sets the bar of amendments too high but early on in, in the founders own lifetime, Thomas Jefferson's lifetime John Adams James Madison and so on. We get 12 early amendments actually ten amendments that we call the Bill of Rights, and then the 11th and 12th early on. So, so these people who gave us the Constitution were able to amend, the thing to their satisfaction. And when I was a young person, I used to say, gee the Constitution is sort of too hard to amend. Things could be a lot better and no whether stop because, 2 3rds, 2 3rds, 3 quarters is very high, now that I'm a little older, I think, yeah it could be much better but, you know what, it could be much worse. And here's one interesting thing about article five, it's set the bar high enough that most of the bad amendment proposals have actually fallen by the wayside, they haven't clear the bar. Maybe it's screened out a few good amendments, but it's also filtered out a lot of bad ones. Almost every amendment has actually made amends. Made the system better. And we're going to see that in the later lectures. A Bill of Rights, the reconstruction amendments, the progressive era amendments, the amendments from the 1960's. So a lot of amendments that have improved the system. Almost none that have made it worse. Maybe prohibition, but that gets appealed soon enough. The 21st Amendment so, so the amendment mechanism really did work. Yeah, it worked enough to, it was supple to enough to add prohibition and then to get rid of it. So, so I think actually article five is not as bad probably as I thought as a young man. One of the biggest questions about article five is, is it the only mechanism of Constitutional amendment or could the people of ,of, 2121, Adopt an entirely new Constitution outside article five in the same way that we adopted the Constitution itself, outside the Articles of the Confederation or something. That's a interesting theoretical question not a big practical one, today, perhaps, but, but, who knows, in, in your lifetime, it may be that as you will. Will resurface. Now before we move away from article five, one other set of wrinkles about article five I wanted to, to highlight. It says that there's, it has a clause saying, provided that. So ordinarily 2 3rds of the House, 2 3rds of the Senate and 3 quarters of the states can create an amendment. And the president doesn't have to be involved and the states can act again either by ordinary legislative ratification of Congress so provides or by special convention. And then there's this other mechanism that's never been used. States asking Congress for special convention that gets summoned. By the way, another question is, could Congress cause such a special convention on its own motion? Let's say, if a majority of Americans from across the country petition for some Philadelphia two convention, could Congress provide for that even if the states didn't ask for it. so, so we we've got article five but it has one other clause that I want to highlight. Because remember, you arguably this is the most important part of the Constitution, determining how everything else might be modified. Article five says, provided that you know is it the order rules provided that and a one. That the, the rules for importing slaves wont be changes until the 1808 clause won't be changed. So, so we're not going to according to article five we don't want an amendment. That says, you can start prohibiting the importation of slaves in 1800 or 1795 or whatever. That's a moot issue today because we're past 1808 and we've gotten rid of. Not just the inter, the international importation of slaves. The, the the slave trade the Atlantic slave trade. We've gotten rid of slavery itself. So that provision, and that's the 13th amendment that we'll talk about in great detail in later lectures. So that's kind of a moot point. But the other provision of article five says, no state can be deprived its equal weight in the Senate without its own consent. So, you might think as a practical matter if we wanted to change the Senate, if we wanted to have an, a proportional upper House as well as a propor, a proportional by population lower House. If we wanted our Senate. U.S Senate to look like state Senates, which are proportional. They're not malapportioned, it's not one county, one vote in, in state upper Houses today. If we wanted to change the Senate you might think as a practical matter we'd need every state to sign on, because no state can be deprived under this provi, proviso of its equal weight in the Senate without its own consent. So, you might think 2 3rds of the House and 2 3rds of the Senate, and 3 quarters the states. When sufficed, I think you'd be wrong about that. Because this provision, this proviso that got added on the last day, and everyone wanted to go home. Or, the last week. And, and, it wasn't thought through very carefully. It was not part of. The great compromise which took many weeks at the Philadelphia Convention between an a proportional House and state's counting equally whether they are populous or not in the Senate, that's the great compromise, that was a big deal in Philadelphia. Lots of discussion. This, this article five proviso sort of cementing that compromise into article five itself a special rule was kind of added on at the end. They didn't think it through very carefully and so here's the point fine. We won't amend the Senate's apportionment by 2 3rds, 2 3rds, 3 quarters, we can't do that but here's what we can do. We can create a, we can take the power from the existing Senate and give it to a new body call it a new upper House, call it the Shmenate if you will, and that can have almost all the powers of the existing Senate. And we can create that by a simple Constitutional amendment that would go through the ordinary article five rules, 2 3rds, 2 3rds, 3 quarters because the proviso only kicks in if we're modifying the apportionate rules of the Senate itself not if we're taking power from the Senate and giving it to another body. Or at least, I think that's the best reading of the Constitution. Note though, that small states are still going to have a lot of protection in that system because even an ordinary amendment has to pass the Senate by 2 3rds vote. And in the existing Senate, each state counts equally whether it's populous or not. Even in the ordinary rules of article five, 3 quarters of the states are going to have to say yes and each state is going to count equally in that process, whether it's Wyoming, which, not very many people, California, 70 times as large in population. So, the small states are protected by the ordinary rules of article five to a very considerable degree. Now, later in the semester we'll talk about whether it was even imaginable in the future that we might have a different kind of, of, of Senate. So that takes us to the end of article five and. You might ask, okay well what's left. We've now talked about how the Constitution's ordained and established in the preamble. Legislative, executive, judicial power. Articles one, two and three. We've talked about Federalism. The relationship among the states and we talked about the status of the territories, article four. We've talked about the rules of Constitutional amendment. What's left? Two things are left. Article six and article seven. That's what we're going to talk about in the next lecture, so stay tuned. [MUSIC]
