At the beginning of this part of the lecture, I said I wanted to talk about why have a Constitution, and specifically wanted to focus on two questions. What functions does the Constitution perform for society? And why achieve these through the Constitution? In terms of the former question, the Constitution forms three major functions for society. The first, is it creates the national government and allocates power among its branches. In many ways, this is the most important thing that the United States Constitution accomplished. It creates, in Article I of the Constitution, Congress, and it says that Congress has all of the powers herein granted. Obviously it creates both the House of Representatives and the United States Senate. As I will talk about in great detail, Article I Section 8 of the Constitution enumerates the powers of Congress. So Congress's authority to tax. Congress's power to regulate commerce among the states. Congress's authority to raise an army and a navy. All come from Article I Section 8. As I'll talk about, and in fact, say often, a basic principle is that Congress has limited powers. Congress can act only if the Constitution provides authority. This is very different from the states, which have the authority to do anything, except that which is prohibited by the Constitution. Article II of the Constitution creates the President and executive branch of government. Article II makes clear the that the chief executive will be called the President of the United States. Now there's many names that could have been applied. Obviously the framers did not want to use king or queen, and czar would be incompatible with this. Also, we have what's called a unitary executive. There is one President of the United States. In many countries around the world there's a Prime Minister and a President, and functions are divided between them, but not in the United States. The Constitution specifies the manner of selecting the President, and it is of course through the Electoral College. Now, I'll talk about how this was modified over time, but basic framework continues to this day. It is not a popular vote that chooses the President. Instead when people vote in presidential elections, they're choosing electors, and it's the Electoral College that decides who's the President. The result is that a President can be chosen, even though he or she loses the popular vote. That's happened four times in American history, most recently in 2000 when Al Gore won the popular vote, but George W Bush won in the Electoral College. Many, I think most, criticize the Electoral College. Most regard it as an anachronism, but the general consensus would be whoever wins the popular vote should be chosen as the President of the United States. But it seems almost impossible the Electoral College will be eliminated. In order to amend the Constitution it takes two-thirds of both House of Congress to pass the amendment. And then ratification by three-fourths of the states. It seems inconceivable that the small states that benefit from Electoral College would ever approve such an amendment. When Article II of the Constitution was drafted, the individual who got the most votes in Electoral College became President, and the runner up become vice president. Hard for us to imagine that today, where the Republican would win the electoral college, and the Democrat who lost would become the Vice President. Well, the 12th amendment was added to the constitution to change that, so where we don't have the situation where you have individuals who ran against each other, having to be President and Vice President. Article II of the Constitution is less detailed than Article I in specifying the powers of the President relative to the powers of Congress. But it does make clear that the President has important authority. The President, for example, is the Commander in Chief of the Armed Forces. The President appoints ambassadors, federal judges, officers of the United States. Article II also specifies the way in which Presidents, the Vice President, all federal officials, can be removed from office through the impeachment power, something that I'll talk about in more detail later in these lectures. Article III of the Constitution creates the Federal Judicial Power. Article III says there will be a Supreme Court, in such inferior courts is Congress over time to time ordained and established. I mentioned earlier in this part of the lecture that everything in the Constitution has to be understood as a compromise. One aspect of the compromise was whether to have lower federal courts. Everyone agreed that there was a need for a United States Supreme Court. But some, especially those who were opposed to the ratification of the Constitution, ultimately the anti-Federalists. But this includes at the Constitutional convention, thought it was enough just to have a Supreme Court and have states have their own courts. Others believe that it was essential there lower federal courts, Federal Trial Courts and Federal Courts of Appeals, as well as the United States Supreme Court. They believe that their instances, which couldn't trust the state courts, but the state courts might be too parochial, too biased, in favor of their own residents or in favor of the interest of the state governments. Ultimately, there was an impasse. Those who said we don't need anything other than a Supreme Court, in terms of the federal court system, and those who believed we need a Supreme Court and lower federal courts, federal trial courts, federal court of appeals. So they punted. They didn't resolve the issue. What they said is we'll create a Supreme Court, but we'll leave it up to Congress to decide whether to have lower federal courts or not. Congress very quickly, in the Judiciary Act of 1789, created lower federal courts, federal trial courts, which are still called the United States District Courts, and Federal courts of Appeals, which are still called the United States Courts of Appeals to the different circuits. And I'll talk about that in more detail. Article III of the Constitution, in Section I, says that the justices of the Supreme Court and the lower federal courts will have their jobs for life, so long as there's good behavior. And so Supreme Court justices, all lower federal court judges, have life tenure. That means they have their jobs for life, unless they resign, they're impeached, so the job's until they die. Some now question this, in fact both liberals and conservatives have said, perhaps we should go to 18 year, non-renewable term limits for Supreme Court justices. Life expectancy today is thankfully so much longer than it was. The Constitution was written in 1787. Clarence Thomas was confirmed for the supreme court in 1991 when he was 43 years old. If he remains on the court until he's 90, the age which justice John Paul Stevens retired, Clarence Thomas will be a justice for 47 years. So this doesn't sound ideological. Elena Kagan and John Roberts were each confirmed to the court when they were 50 years old. They remain until they're 90. That's 40 years. Many believe that that's too much power held by a single individual for too long a period of time, and would like to see turbulence. But that of course would require a constitutional amendment, which is very difficult. Article II, in addition to creating the Supreme Court and the authority of the lower Federal Courts. In addition to giving these judges life tenure, also enumerates the powers that the Federal courts can hear. It lists nine categories of cases and controversies that federal court can adjudicate. For example, it gives federal courts the authority to hear cases that arise under the Constitutional laws of the United States. It lets federal courts hear cases where there's suits between citizens of different states. That reflects the distrust in allowing a state to decide the case through its state courts when its own citizens are involved. And I'll talk in detail about the powers of the federal judiciary in the next major part of the lecture. So the Constitution creates these three branches of government. It creates the national government and allocates power among the branches. The obvious question is why? And the answer that's always given is separation of powers. Checks and balances. James Madison, in the Federalist Papers, said, the accumulation of all powers, executive, legislative, and judiciary, is the very essence of tyranny. Now the idea of separation of powers didn't originate at the Constitutional Convention. In England there was long thought to be a separation of powers, but it was very different than the separation of powers we speak of in the United States. It was thought of as the Crown, the King, the Queen, there was the House of Lords, and the House of Commons. That was a division of powers. But the framers wanted to divide power functionally, many say this comes from philosophers, who had previously taught in their political writings about the desirability of dividing power. My way of looking at it, is that the Constitution is elegant in generally requiring that two branches of government act in order to accomplish anything. Most obviously, to adopt a law generally requires that Congress act and the President sign it. There is a way in which Congress can override the President's veto. In order to enforce the law generally requires that the executive branch bring a prosecution and then the courts convict. To appoint someone to the Cabinet, to be an Ambassador, to be a Federal Judge, requires the President appoint and that the Senate confirm. To enter into a treaty, an agreement with another country. Of course, the President negotiate, and then that the Senate ratify the treaty. In this way what you have is checks and balances. The idea is to divide power, keep any branch from becoming too powerful. But it's always worth asking, are the checks and balances created by the Constitution still desirable today? They make government action more difficult. This was intentional. The framers though less in the way from the national government would be better. But does it make government action too difficult? Think of the gridlock that exists now in Washington. Especially in times like now, where the President is one political party, and Congress in another. It's so difficult for government to act. It seems time after time, we're on the verge of the federal government shutting down, for defaulting on its debt. Would it be better to change the structure of the government to make it easy for government to act? Some would propose that we go to more of a parliamentary system. Where we make sure that the President and Congress are of the same political power. Is less government action necessarily better? That's a premise of the Constitution. It's a function of why separation of powers is deeply embedded in the Constitution, but whether that's desirable is something that has to be constantly reexamined and thought about again. So I said that if we talk about what does the Constitution accomplish, there are three things. The first is to create the national government and divide power among its branches.
