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Development of the u. S. Constitution and what he believes are its main principles. Mr. Mcnulty served as Deputy Attorney general in the george w. Bush administration from 2006 to 2007. Good evening. Welcome to class number two of our study of the u. S. Constitution. Great to see you all here tonight. Last week we looked at the history, a brief look at history that toledo a drafting of the constitution. I want to just recap that quickly tonight as we start because as i try to communicate last week, the drafting of our constitution, the history of its formation is extraordinary to say the least. It is a remarkable moment in all of world history. And we are here at 233 years later and our constitution is in the news daily, being referred to as we almost speak here tonight in the United States senate again and again in reference to one particular aspect of the constitution, but, again, its alive and well. Is to think about the fact that this came together from a period of midmay until midseptember of 1787 is really remarkable. We recall from last week that we said that the revolutionary war, and a lot of folks arent clear on the sequence and its important to know it, that conflict began in lexington and concord, massachusetts in 1774. These very independent colonies, all british colonies that bra operated with their own governments and own leadership had to come together and form a military alliance and it wasnt easy for them to do that. They had a lot of hesitation and concern what it meant to be together. But the wren my was the justification for their alliance and so they formed that alliance with the First Continental Congress and in 1775 they come together by, of course, july 76 they make a declaration of independence together and now we see we see a nation starting to be born at least for purpose of declaring their independence and working together for a common military purpose. Now a year and a half after that they form the articles of confederation. And the articles of confederation become the next step in an effort to have some type of connection between these colonies. We looked last week at the articles of confederation and we noted that, referred to the colonies referred to themselves as a firm league of friendship, interesting way to describe this new United States, sort of like nato or some type of International Treaty of countries, individual countries coming together. It took three and a half years for those articles to be ratified and to be effective. The necessity to form a nation was clear and they put together articles that are very loose, dont require much. They are minimal in terms of government structure. And yet it took three and a half years for everybody to get on board and gleam. And yet we see, of course, severe limitations, significant weaknesses to the articles of confederation. By the way, as those articles of confederation were being considered, or shortly after they were considered they were approved by sufficient or by other states by march of 1781, the british surrendered at yorktown in october of 81 so military conflict was over by ten of 81. So now theres sort of peace although the british army is still present in new york and it took a little while for them to actually leave the new union. But during this time the articles now are in operation. And the limitations are very clear. During that time we see that the articles of confederation, they did not provide for an executive branch, there was no independent judiciary. It was only one body, one house congress. One had to basically be in agreement to do anything. It gave the states tremendous power, virtually all power. And as a result lots of things were going on in states that were really unsettling with regard to recognition of Property Rights and doing justice and this was something that madison was especially concerned about. That period of time by the way, that 11 years between articles of confederation and then finally 1787 and the Constitutional Convention is a fascinating period and as i was preparing i pulled from myself a book called the confederation and the constitution. And this is a book that i had to buy for my Early American History course in 1977, i think. Very longtime ago. I was a history major and i kept all my books. Who knows maybe when youre in your 60s youll have your College Books around. I have a lot of mine. It was useful. And its a fascinating period of time in which the country is, again, trying to come together and be a nation. Well it wasnt working. And as i talked about last week, Alexander Hamilton especially is concerned and so there was a meeting of five states in annapolis in 1786. And at that meeting hamilton was pushing for the congress to call a special convention to presumably modify the articles of confederation. And he was successful and in february of 87 congress did call for a Constitutional Convention. And this Constitutional Convention was instructed to do what was necessary to fix the problems of the articles of confederation. And as we said last week something much different than that occurred, in the book i recommended to you, the paul sopranos book on the constitution, they refer to it, foreand son paulson refor it as a cout des the ta trt and forme document that was completely knew. Threw out the articles of confederation. Formed this new constitution something which was way beyond their man tate and able to get that actually ratified. So that in itself was a major milestone in American History. Hamilton was in a sense the instigator who was able to get this convention called and to encourage it to be bold and take action. George washington was brought to chair the proceedings and he didnt say much as chair but he encouraged them also to be bold and to do whats necessary. Madison was the architect. The one who did the most work. The one who came prepared to real really, brought a constitution basically with him. And was prepared to lead anyone the light. Didnt miss anyone in the proceedings and took extensive notes and its his notes that we can rely on the most to know what happened during that remarkable convention. Wilson from pennsylvania was kind of a draftsman who helped work with madison to get the provisions right. And then morris, morris was the word smith that wrote the words that have become famous and the preamble in particular. When madison came prepared he came with the virginia plan. He said and the virginia plan called for basically what we think of today in the structure of the constitution, the sprafgs powers and federalism and so for, thats tonights focus. But the one weakness tip virginia plan was that it called for representation based on population for the house, and the senate. So it was a Bicameral Legislature and that was an improvement or the articles of confederation. That wasnt unprecedented. That existed already in parliament. But elected based upon a population. That was objected to by the smaller states, of course. And the great compromise came forward which was something from Roger Sherman of connecticut. So it is sometimes called the connecticut compromise. The great compromise was we like what youve gone, mr. Madison, it is a great framework but this one wont work. Well go with something different. Every state will get two senators and well have a Population Based representative elections for the house and so that was how they worked that out. And there were many other debates over important things and well talk about a few of those tonight. By sent 17th they were able to sign that constitution. Merely everyone, not everyone, but merely everyone three famous participants ended up not signing. But they came together to sign the constitution. And then the ratification process began. Now at this point we have to appreciate how controversial the document was. It had strayed from the mandate as to amending the articles of confederation. The states, so independent minded were very concerned about what had been created and there were objections throughout the colonies. As the various states held their ratification conventions, and by the way that is the way it was set up, they had special conventions for purposes of ratification, not just a vote in the state legislatures. But in those conventions, there were really fierce debates about whether or not this was the right direction. And the concerns were over the fact that there was a National Government being created that would have too much power and the other was there wasnt enough protection for rights that there werent enough safeguards in place. And between the two things, the centralization of power and lack of guaranteed rights, there was a lot of difficulty in getting states on board. One great description that is part of a wonderful introduction to my copy of the federalist papers, im going to talk about them in just a moment, but a columbia historian who wrote the introduction to this publication of the federalist, robert ferguson, he describes it this way. We forget hour controversial the constitution was in the moment of its birth. The document that now governors the United States was drafted in secrecy by men who knew they had acted beyond the mandate given to them, sent as state delegates to philadelphia in the sum of 1787 to discuss problems in the new union, they had been told to make any adjustments within the articles of confederation as the official compact of union. The articles had been drafted in the antiauthoritarian moment and spirit of 1776. It was a companion document to the declaration of independence and left autonomy in the hands of the states. Nevertheless, five years would pass before the states approved even this loose coalition and they did so in 1781 only after many revisions by revolutionary leaders who feared centralized authority. The framers of the constitution of philadelphia basically ignored these fears. Instead of tinkering with the arrangement, they junked the articles of confederation all together and wrote out thur document of fundamental principles and when they were done they have a stronger ideal of union than the suspicious compromisers of the original federation had contemplated or who have allowed. So you see what was in front of those who supported the new constitution in order to be able to get support throughout the new country. And so that brings us to the federalist papers. About a month after signing the constitution, about a month after september 17th, 1787, the first one of these oped pieces as we think of them today, they were essays, appeared in a new york publication, late october of 1787, drafted by Alexander Hamilton. And so he wrote the first paper in defense of the new constitution. Now hamilton, madison, and jon jay wasnt even at the Constitutional Convention, didnt sign the constitution. The three of them teamed up to write these federalist papers. There were 85 in total. And they were published from october all the way through august of 88. At one point, before they were even all done, they were collected together in a publication and that is when they were first called the federalist. And today we refer to them as the federalist papers. Jay only wrote five of them. He became ill at certain point and wouldnt be able to contribute more. So hamilton and madison split the job. Hamilton did more, a bit more than madison. They used a pen name for them. Their pen name was publias named after the founder of the roman empire, publias polaris. A pen name was a very statesman like educated persons way of communicated. It was known who were the advocates for the new document. And jefferson, who, again, wasnt at the convention, didnt sign the constitution, when he got a chance to read the federalist paper, the essays, he said, quote, the best commenty on the principles of government, whichever was written. Let me read just a few lines, a first few lines of the first federalist paper by Alexander Hamilton. This is how the federalist papers begin. After full experience, this is by Alexander Hamilton, after full experience of the insufficiency of the existing federal government, you are invited to deliberate upon a new constitution for the United States of america. The subject speaks of its own importance, comprehending in its consequences nothing less than the existence of the union, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects, the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country to decide by their conduct and example the important question, whether societies of men are really capable or not of establishing Good Government from reflection and choice or whether they are forever destined to depend for their political constitutions on accidents and force. That is just a taste of the brilliance of the federalist papers. So those papers came alongside the ratification process and helped to address every argument, every issue that was being thrown up against the new constitution. So lets jump in now to the new constitution and see some things that for many of you are very familiar and for those of you who took the class so you could understand it, im not going to make assumptions and i want to make sure were all on the same page. So lets look at the structure of the constitution. Its brilliantly simple, isnt it . You have the preamble, the preamble in itsel kwens reflecting the declaration of independence with regard to the will of the people to express their own form of government. So we have the legislative branch, article one, the executive branch, article two, the judiciary branch, article three, you hear of article three judges, that means a judge appointed according to this article of the constitution, state to state relations and federal to state relations all brought together in article four. Article five how the constitution is amended. Article six dealing with national debts. And article seven, how to ratify the constitution and then the bill of rights. And there are 27 amendments to the constitution in the bill of rights. Now the bill of rights in particular is referred to that first ten amendments because that is the bill that was introduced by madison and so to be perfectly precise, you have the bill of rights in those first ten amendments that were ratified and then additional amendments since then. There was a quite a stretch of time between the initial bill of rights and a couple of things done needily after that, and then the civil war and the 13th amendment. All right. So, thats the structure. And in the structure of the constitution then you could look of course at the one you have in your hand, you have basically articles, sections and clauses. And so when we talk about the constitution we say well that is in article one, section two, clause three. And then there are terms that if you go to law school you learn about key words that are referred to as clauses as well, so, for example, when we get to article four well talk about the supremacy clause and that clause is located within article four, section such and such and clause such and such. So it is a useful term to refer to portions within each article. All right. So then kind of the outline, too, of our class. Of course when we get to the bill of rights well spend about half of the class in future lectures going through those amendments. But next week were going to talk about judicial interpretation, how do we understand what this document says. And then well jump in the legislative branch the week after that. All right, so that is our structure. Now the bill of rights is an important part for us to sort of touch on right now. If you look at your constitution, turn to article five, that is on page 43 of the little booklet. And here we see how the constitution is to be amended. So basically what this said in article five is there are two ways to amend this constitution. The first is that an amendment to the constitution passes the congress, both houses of the congress have to vote by twothirds, twothirds vote in order for the proposed management to go forward. And from there it goes forward to the states and then you see it says twothirds of the several states shall be required to approve of the proposed amendment, all right. Now there is another way to amend the constitution that has never been done and that is to have another Constitutional Convention. If you read the language of article five it describes what it would require to actually have another Constitutional Convention. Now, of course, one advantage of a Constitutional Convention is you get a lot of work done and do it more effectively in terms of changing the constitution. Of course the great danger of a Constitutional Convention is once you get those folks together, well you remember what happened in the summer of 1787 when they were supposed to amend the articles, they came up with a different document. So if you brought a lot of people the states together, theyre delegates to have a Constitutional Convention, it would be wide open. There was a movement in the 90s to actually try to form a Constitutional Convention. And that is still going on today. I have friends who from time to time will tell me about getting mail and so forth, calling for a Constitutional Convention. It would be quite a an amazing thing if that were to actually occur and it hasnt happened. So in the process of the states considering whether to ratify the constitution, there was a great deal of attention on this idea that we needed to have guaranteed rights. And it was raise again and again. New york basically said, were only going to be on board if you have a bill of rights added. That wasnt a new point but specifically that was their suggestion and really demand for going along. And so madison and others basically promised that once the congress was formed, with the new constitution, it would be the first order of business. There was some resistance on the part of federalist to have a bill of rights. They thought it wasnt necessary since the constitution enumerated the powers of the new government would be and therefore if they werent enumerated, no one should worry that the powers would exceed their boundaries and rights would be threatened. But, of course, that wasnt sufficient response. And, in fact, to be fair, there were enumerated powers that are very broad and it wasnt clear at all as to where they might go with that. So for that reason madison promised to introduce the bill of rights and did as soon as the new congress was formed in june of 89, the bill of rights was introduced by madison. In the house, madison became a member of the house of representatives when it was initiated. And by then the rights were sent on. Passed twothirds in the house and the senate and by september it is sent to the states for approval. And then you have an interesting thing that happens. That proposal, those amendments, actually were 12, not 10. So 12 amendments went to the states for ratification. But two didnt make it. Actually to be clear about this, madisons proposal had 12. One of those didnt even make the twothirds cut. One did. But it didnt get confirmed by the states. Now if you turn in youre book to the 27th amendment, which is on page 56, you see this. The 27th amendment was proposed on september 25th, 1789. That is the date that the congress completed passing the amendments and sent them on for the states to consider. And it was ratified on may 7th. What . 1792 . No, 1992. 1992. It took a little while for that amendment to actually get the twothirds support. So michigan finally passed this amendment in 1992. The law it says no law varying the compensation for the services of the senators and representatives shall take effect until an election of representatives shall intervene. It said congress cant vote itself a pay raise. It could vote for a pay raise but it wouldnt get the money. The next congress will get the pay raise. That is what this says. And it finally dawned on people in the 1980s or so, hey, there was this amendment way back in the beginning with James Madison and the bill of rights that never got finished. And it actually was a nice amendment to kind of stick it to the members of congress who want pay raises. Lets pass it. So a bunch of states got busy and by 1992 michigan was the last state they needed and it became the 27th amendment. So you have 12, one bites the dust while still in congress, 11 go to states. One doesnt make it. Ten do. And that is why we have an original ten amendments to the bill of rights and, in fact, the First Amendment that we always think of course with free press and free doll of religion, that is the third amendment of the original proposal. All right, so, thats a historian. By the way, this is a timely conversation, because if youve been paying attention to some of the lesser headlines in the news, there is now a 28th amendment out there that is going to be the subject of greater attention increasingly. What happened here is that in the 1970s the equal rights amendment guaranteeing equal rights for women, prohibition against discrimination on the basis of sex was passed by the house and the senate by twothirds and sent to the states for ratification. Now, here is an interesting thing. Amendments that are proposed to the states have typically had timelines for which they could be considered. In other words, not the 27th amendment, that one had no timeline, that original group didnt have a timeline and so that one hung out there for 200 years or whatever, right. But most of them have a timeline. The era had a timeline of seven years. So it needed to be either ratified by the early 1980s or not. Well, it didnt get ratified. But virginia just voted within the last few weeks to ratify the 28th amendment that was proposed by congress back in the 70s. And that put the number over the threshold. So now the question is, does it become the 28th amendment . Well, the position being taken by the national archives, which is kind of an interesting thing, too, like who decides . The keeper of the constitution. It is not being recorded as the 28th amendment. Because it passed that timeline. Well, in just the last day or so three attorneys general, state attorneys general, virginia, nevada and i think illinois filed a lawsuit against the archivist claiming that this needs to be recorded as the new 28th amendment. The department of justice has taken the position that the time is up and it cant be done. And the question will be are even timelines constitutional. Because there is nothing in here about timelines. And the language isnt in the actual text of the new amendment. So the question is can you still have those limitations. Very interesting. It is happening right now. So well see where that goes. All right. Lets move on now to the major principles of the constitution. Weve got the structure in your mind. You understand how we got there, how this simple document was created and then a provision for amending it, and it been amended. But what are the Core Principles that really shape the document . And the key question in thinking about the principles of our constitution is the question in where does the power reside . It is all about political power. Who holds it. Is it shared . How is it shared. Thats the issue. These framers understood well because they were basically coming from a system of government that had a king who had abused that power over the centuries and had elected parliament that was trying to establish its own power. And so the question of vulnerability and risks associated with power was the first issue. And there were basically three principles that shaped that question or answered that question of what to do with power. And the first is republicanism. Want to show you, though, before i jump into that, something that i saw when i was at the Constitution Museum in philadelphia. I mention this museum last week. Im a museum nerd. I go to museums all of the time. I went to the Post Office Museum during the winter break. I didnt see any of you there at the Post Office Museum. But i thought it was really cool. But anyway the constitution in philadelphia is great. And i was going through it really, really, really slowly, i came to this little spot. And i looked at this display and what this was, all of the sort of great ideas that had been known by the founders, by the framers at the time of the creation of our country, these were learned people. And madison of course was in his 30s and so was Alexander Hamilton. But madison in particular, his awareness of political philosophy at that point was profound. This little display is really cool because you push the little button and it just gives you a little excerpt. And i looked and i thought, now that is the reading list that we ought to have for houma. So if youre not a senior, be prepared that next year, we may tinker with one of our humanities courses and you could get a little preview right now. No, were not going to do that. But it would be great. And you have montes cue in the book and mentioned in the paulson book as one of the real influences for madison. But there is your reading list if you want to really get down into political philosophy. But as you understand more and more about the political philosophy that they knew well, you start to understand where these principles came from. So lets start with republicanism. Let me read from federalist paper 39 because the defense or the explanation that is by James Madison really gets us clearly grounded in the idea. So in federalist paper 39, this is what madison says. The first question that offers itself is whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of america, with the fundamental principles of the revolution or with the honorable determination which animates every votery of freedom. To rest all of our political experiments on the capacity of mankind for selfgovernment. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible. So strong statement by madison as to how committed the constitution is to the idea that when we meet and when we say republicanism, what we mean is that the government is formed by the people. That the people have direct or indirect control over all of those who serve in the National Government. That there wouldnt be hereditary or other ways in which power would be obtained. It would only be through the rights of the people to elect to choose their representatives. So it would be a Representative Government, not direct democracy but the Representative Government would be fully controlled by the choice of the people. So article four guarantees a republican form of government thats in the constitution. And in article 1, sections 9 and 10, it refers to titles of nobility and in that you cant states cant establish title of nobility. And trying to basically get away from what they were so familiar with in Great Britain with having hereditary and other forms of titles that came in one way or another from the monarchy. So a basic concept that we would take for granted today but it does it does have real impact in a lot of different ways. Even the way the senate was set up originally where the state legislature would select the senators, this principle republicanism pushed against that until they amended the constitution to have direct election of senators. We see this today and im going to talk about this when we get to the get to the article 2 in the executive, were going to talk about the elect oral college and there is a lot of discussion today about whether or not that is consistent, sufficiently consistent with the principles of a republican government. It is. But thats part of the debate. So this is the first of the key principles. The second principle is that of separation of powers or as we often think of it, i shouldnt say or, the idea of checks and balances. Here it was where federalist 51 comes into the mix. Now, i had you read federalist 10 before tonight. And let me just take a moment to say a few words about that before i i jump into federalist 51. Federalist 10 is the one i asked you to take a look at. And federalist 10 is a remarkable essay that demonstrates what i was talking about before regarding the incredible knowledge, the political philosophy capability of madison as he works his way through the question of how to control factions within government, factions that can do great harm to those who are in the minority, those who dont have the same amount of power. And madison was deeply concerned about the way in which these factions, especially in the states were operating and running rough shod over those who didnt have the sufficient power. So he goes through in federalist 10 the problems with these factions. He defines factions in federalist 10 by saying a faction, i understand, by a faction, i understand a number of citizens, whether amounted to a majority or a minority of the whole, who are united and actuated by some common impulse or passion or interest adverse to the rights of other citizens or to the permanent and aggregate interest of the community. So he defined the particular in particular that way. And then asked the question, what are we going to do about that given all of the difficulties that we see and the troubles with controlling human behavior. He really looks at just the fundamental vulnerabilities of people to govern themselves. And he comes to the conclusion that in one sense human nature is what it is, but that at the end of the day we could try to control the effects of human nature and so hes got fantastic language to summarize these arguments. So strong, he says, is the propensity of mankind to fall into mutual animosities that were no substantial occasion presents itself the fanciful conditions have been sufficient to kindle unfriendly passions and excite the most violent conflicts but the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever form distinct interests in society and he gives examples of that and then he talks about the fact that the causes of this cannot be removed and therefore we have to control the effects. To secure the public good and private rights against the danger of such a faction and at the same time to preserve the spirit and the form of popular government is then the greet object to which our inquiries are directed. Let me add that it is the great desire by which this form of government could be rescued. So he sets it up for why republican form of government could actually be more effective in a growing country which was very counter to what people thought. People thought that a government that is controlled by the people is is fine and good in sort of a small, limited way. But that when you spread it out for a growing country, it wouldnt be effective. And he turns that argument completely around and said, no, this is actually the best way to secure peoples rights by this kind of republican form of government. And so we have in federalist 51 the really basic political philosophy of madison that informs the constitution. It is often said that federalist 10 im sorry, i should have said federalist 10 and federalist 51, which is to come next, that those two documents really summarize of all of the federalist papers, they capture the principles of the new government. So now to separation of powers. That is where we get to federalist 51 and in the interest of time ill led you read that between now and next week. The key is to look at how we see the reference to double security. And by double security were talking about the security of the peoples rights, liberty of the people, its made secure by separating powers among the divisions of government, three branches, and also between the federal and state level. That is the double security. These are cocoordinate branches of government which is laid out in federalist 49 but that is the main point. Just cocoordinate, meaning they are separate and equal, they have overlapping powers, we saw a clip of the war powers debate last week. That is a great example of the overlapping powers. The congress has the sole power to declare war and yet the president is the commanderinchief. He will decide how a war is executed, whether were going to fight or not fight, where were going to fight, how were going to fight, but congress, again, has the power to declare war. Even legislation, Congress Passes legislation but the president signs the bill into law. But if he vetoes the bill, congress with override his veto. So you see, the founders were really thoughtful about how to try to create these balancing powers. Which brings me then to the final point i want to make tonight and that is the impeachment power. Because it is one of the checks and balances that we have in the constitution. And its the one that is getting a little attention these days. And so i thought id just make sure that you knew from a perspective of where it is in the constitution your way around on the power of impeachment. So article 1, section 2, clause 5, look that up, article one, section two, clause five, the house of representatives shall have the sole power of impeachment. The houses that the power to charge, basically. To bring an indictment against the president. The power of impeachment. Article 1 section 3 clauses 6 and 7, now on to section 3, clauses 6 and 7, the senate shall have the sole power to try all impeachments when sitting for that purpose they shall be in oath or affirmation and they actually take a special oath to start an impeachment trial, they all the senators all stood there, a couple of weeks ago, and did that. That special impeachment oath. And in fact, in 1999 i was on the senate floor as a part of the clinton impeachment for the house managers, i was a lawyer for the house managers and i was on the senate floor and i wrote henry hyde, the chairman of the House Judiciary Committee opening speech and i wrote that language to play off the oath. Because the president had been accused of lying under oath. So i thought we could have a pretty interesting connection to the oath. But didnt too well. Anyway, so you have the special oath and then you see it goes on to say that when the president of the United States is tried, the chief justice shall preside. So chief Justice Roberts has been sitting in the chair for the last couple of weeks and no person shall be convicted without the concurrence of twothirds of the members present. It further says judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States. But the party convicted shall nevertheless be liable and subject to trial and judgment and punishment according to the law. By the way, this language about the president not being subject to prosecution until removed from office, and then also the idea that next is article 2, so were in article 1, but article 2, section 2, clause 1 said the president ial have the power to grant reprieves and pardons for offenses against the United States except in cases of impeachment. So let me just finish. There are four provisions. You have the article 1 section 2, clause 5 about the house having the power. Article one Section Three clauses 6 and 7 talk about the senate and how the senate shall have the sole power to impeach and the cleave justice presides and twothirds required for a vote. And then you have article 2, section 2, clause 1, the president ial have this power to grant pardons but not in the case of impeachment. And then finally article 2, section 4, the president and Vice President and all civil officers of the United States shall be removed from office on impeachment for and convictions of treason, bribery, or other high crimes and misdemeanors. And it is interesting to note that alan dershowitz, a harvard law professor defending the president on the senate floor earlier this week referred to the provisions involving pardoning for crimes and when the president could be indicted to strengthen his argument that only crimes could be included in the definition of high crimes or misdemeanors. Which is a key, a key issue for the current impeachment process because the articles of impeachment against President Trump dont actually allege any particular criminal violation. So one of the Big Questions is whether or not that pleats the standard that in the constitution. Many scholars say it does. But dershowitz is taking the position that it doesnt and that is been a fascinating debate. So, those are the provisions within the constitution. I know i said that very quickly. And then finally just this little tidbit about impeachments. There have been 20 impeached officials in our history. 20. Three president s, johnson, clinton, trump. One secretary of war. One senator. And 15 judges. Secretary of war, senator, 15 judges. Eight have been found guilty and removed. Seven acquitted. Others resigned before the trial. Only seven in the last 80 years. My favorite one is the very beginning. The one one Supreme Court justice. I said 15 judges, one was a Supreme Court court justice, judge John Pickering from new hampshire, and he was impeached in the early years of our country for intoxication on the bench. And when he was he decided to appear before the house when they were having consideration of the article of impeachment and he testified in his own defense and he said, with reference to the intoxication, he said, i shall be sober tomorrow, i am now damn drunk. Not really effective defense in my view. But at least he was honest. I can understand why somebody might want to drink before they had to appear before the House Judiciary Committee. Anyway, that was 1802. Weve had so thats the track record of impeachment. Well, im afraid our time has run up. Im going to now turn to your questions. Next week well pick up on federalism just to look at coming attractions. Well pick up on federalism and that is very quick and then we jump into one controversy and thats the proslavery provisions that are in the constitution. Of course i talk about the constitution in glowing terms. But there is one major flaw to the original constitution. A major flaw. And that was the way that the original constitution dealt with slavery and, in fact, the constitution made slavery a bigger problem. And well start next week with the three proslavery provisions and then jump into interpretations and principles. With that, let me see if anybody has any questions . Do you want to take one down there right in the front. You could stand. Well, hello. So im just wondering actually, i know that the new jersey plan contributed to having the senate in the constitution in general, but im wondering if there is any standing arguments for having state representation now because im sure a lot many people would agree that we dont have a loose confederation of countries now. I assume were more unified now than before so is it Still Necessary . Thats a great question. In my view, i think that the fundamental issue really hasnt changed that much in the sense that the largest states would exercise such significant control over the legislative branch and over the production of legislation, they have would have significant control in the house, which is already in existence, and yet given the size of the country, its limited. You have so many districts in california and so many districts in texas and new york. But if you then had a senate that was similarly composed and i suppose it would also have to be a much bigger body, right. Because it would whatever the apportionment would be would have to assign at least something to the small states and that means the other states would just get bigger. And i think that what we would lose that, of course, is something that were desperately holding on to right now and that is to try to build consensus for legislative proposals by having all of the states in some way not all of the states but have at least a majority of the states Work Together to find common ground. Part of the problem here is that in your lifetime youve seen to little of good legislating. It is been so bogged down for so long that it is hardly possible to remember it. But when i start on capitol hill, as a young lawyer in 1983, for the first decade and a half or more of my career, i actually saw congress work. So you have to take my word for it. It actually could happen. That there were actually efforts to try to reach across the aisle and find consensus. It is just been so limited since then. But i dont think the solution is to push more power to the largest Populated Areas which is what would happen. Another question, ill come back there but let me go back up to back there. Yes, please. So presumably the purpose of the constitution is primarily to protect the rights of american citizens. How it goes about that is one thing, but if the constitution allows for amending it and moreover repealing amendments, and the first ten amendments, the bill of rights, some of the rights that are meant to be protected, why they were made amendments and not in the original constitution if that was the constitutions purpose. Well, first of all, lets be clear that there is nothing particularly protected about the seven articles. Theyve already been amended by the amendments. So even if you had the original document had contained the rights that we see in the amendments, theyll still have a vulnerability to be changed at some point down the road. So the founders saw that the constitution would be subject to adaptation to circumstances that would unfold in the history of the country going forward. And they really wanted that to be the case. But they also wanted it to be hard. They wanted it to be real work for it to be done so there is a stability and that is why, after the initial founding period, there was nothing done to the constitution until after the civil war, 1865, 13th amendment and the abolition of slavery. But for that period of time in between, that document just stayed as it was. So it is hard to change it. When you think about it, 27 amendments in all of that period of time is not very many but they have been made and theyve been really significant things added to the constitution. Including both women and essentially younger people being able to vote, and, again, abolition of slavery, civil rights, really significant modifications. So i guess what im saying is that i think they got it right in that they made it possible to change the document but they made it really hard and they couldnt have done anything to protect anything in it with actually one minor exception to that statement and it has to do with slavery and well see this next week, that they put kind of a freeze for 20 years, when they wrote the original constitution, on the ability of prohibiting states or prohibiting the importation of slaves. So the slave trade went on for 20 more years as a result of a constitutional protection. Other than that, the constitution has always been amendable. But i think in a responsible way. Does that get at what you were raising, talking about. Sort of. Do you want to come back real fast. Why not freeze why not freeze especially the First Amendment which is a big reason of why colonists fled where they came from to america, religious freedom and freedom of speech. I just think that the notion that the freedom of speech or freedom of the press, religious freedom would be i may have to back up on that statement a little bit because religious freedom is pretty threatened right now. But it woe be threatened to the extent of twothirds of the house and twothirds of the senate and twothirds of the states being able to all get in line to strip a right like that. That is what would be at least in 1787, that would have been essentially unthinkable. Let me get another question or so over here. Right there. Is it possible im ill informed but the current impeachment problem is objection of congress not a criminal charge. You mentioned that criminal charges were actually in this impeachment but didnt the Government Accountability office which is an independent office find him guilty of obstruction of congress. Is that not a charge. Let me sort out of a couple of things. First of all obstruction is justice is different than not cooperating with congress. There is no federal Crime Associated with not cooperating with a federal investigation. There is a federal crime in obstructing a lawful investigation by the destruction of documents and even the house managers arent making the argument that the president s lack of cooperation with the house process amounted to the criminal obstruction of justice that we have in the u. S. Code. Gaos finding is not a criminal issue. Gao has no authority to form an opinion about a criminal law. What gao found was that with regard to the president s legal responsibilities, in there theyre talking about how the law provides for the spending of money and whether or not the administration could withhold payments to ukraine, theyre focused on noncriminal aspects of what is legally required. So it doesnt get into the category of does anything the president done constitute a crime or not. And in the q a going on right now in the senate, this question of was a crime alleged is being conceded that no, no crime has been alleged in these articles. Though i think if i got my memory in what has been said there might be a comment we might have been able to find a crime but we didnt include them in these particular articles of impeachment. I think i may have to wrap up with that one. Do i have time for one more question. How about over here. Did i see a hand . Yes, please. Hi, so this might be a bit of a complicated question, i want to get your take on it. There is a Movement Among some states called National Popular vote in which if enough states sign onto it then they will all give their electoral votes in the president ial election to the popular vote winner undermining the Electoral College and making the president a direct democracyic election. Is there anything in the constitution that prohibits this or is it possible in the future we may not be a republic any more and instead a direct democracy. That is a great question and im going to completely dodge it right now. Because this is a one and done diesel, this is a class that will go on with the semester. When i get to article 3 ill talk about the election of the president and look at the Electoral College and ill address it there. I prefer to do it in how the Electoral College works. Youre right about that movement. That is very interesting. And whether or not that has validity based upon what the constitution says. So thanks for getting us started on that. That is all for tonight. Thank you very much. [ applause ] youre watching a special edition of American History tv. First, a virtual town hall hosted by the National Constitution center in philadelphia. About George Washingtons influence in shaping the constitution after the revolutionary war. Then later learn how president S Abraham Lincoln and Andrew Johnson were portrayed as upholding or disregarding the constitution. Afterwards a discussion about the preamble of the declaration of independence. Youre watching American History tv on cspan 3. Every saturday night American History tv takes you to College Classrooms around the country for lectures in history. Why do you all know who lizzy borden is and raise your hand if you ever heard of this murder, the jean harris murder trial before this class. A deepest cause where well find the true meaning of the revolution was in this transformation that took place in the minds of the american people. So were going to talk about both of these sides of this story here, right, the tools, techniques of slave owner power and well also talk about the tools and techniques of powers that were practiced by enslaved people. Watch history professors lead discussions with their students on topics ranging from the American Revolution to september 11th, lectures in history on cspan 3 every saturday at 8 00 p. M. Eastern on American History tv and lectures in history is available as a podcast, find it where you listen to podcasts. Next, on American History tv, the National Constitution center in philadelphia hosts a virtual town hall about George Washingtons influence in shaping the constitution after the revolutionary war and as president his role in making it work. This center Jeffrey Rosen moderated the conversation with historian lindsay travinski and Pulitzer Prize winning author edward larsen. This and other programs are available on the website and as podcasts. Okay, it is now my great pleasure to put on my constitutional reading classes so you could tell im actually not outside because i have to put them on to give the introduction. And introduce our wonderful guests tonight. Lindsey trevinski is white house historian at the White House Historical association. She is the author of the new book the cabinet, George Washington and the creation of an american institution. Shes widely published. I had the great pleasure of

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