And we’re going to talk a little bit about that as we go along but for a short document there’s an awful lot of information in it and in the hour and a half that we have this evening we can’t study everything so I’ve made some editorial choices of what we’ll focus on
And primarily what I’m focusing on our constitutional issues and topics that seem to be coming up in the news and and in what’s going on in the country and I want to focus somewhat on those so that as these things are happening hopefully we have a good understanding of what’s
Happening I’ve spoken to a number of people who if they ever really took time to look at the Constitution it was probably back in high school so it’s been a while and I think to be good informed citizens we need to review it every once in a while one thing I do not
Want to do this evening and that’s get into pros and cons on issues there are forums for that this is not that this is for information for review for getting us all kind of back up to speed on the basics and then we can go to other
Forums and talk about pros and cons whether this particular portion of the Constitution is being adhered to and that one maybe isn’t we’re not going to get into that tonight that’s for summit for other forums I welcome questions as long as let’s try to keep them reasonably short because we do have a
Lot of ground to cover in a relatively short amount of time one question I’ll answer right off the top some of the spelling is funny keep in mind in the 1780s they were still using ridic spelling and also some words get capitalized that we wouldn’t bother capitalizing one today so just just go
With it it’s what it is during the Revolutionary War during the war of independence from Britain there really was no document that governed how the United States what had been the colonies what we’re becoming the United States would be governed there was no Constitution nothing along those lines
Once the war was over once independence was one the states in the Continental Congress the ruling body that had started the war on behalf of the colonies decided we need some kind of framework on how we’re going to govern this new independent nation and the states came together and they wrote
Something called the Articles of Confederation you wouldn’t recognize it when you compare it to the Constitution it left the central government extremely weak it had no power of Taxation it had the bad money from the different states many of the states continued to each one print their own money charge import and
Export duties at the state line something that it’s hard to imagine today all right we cross state lines without even thinking about it anymore but that was that was a very different thing but very quickly the leaders of the new nation realized this wasn’t working it was too loose it was it was
It gave the central government no authority no power it was completely at the mercy of the individual states so it really wasn’t like one nation was kind of like thirteen different nations in a kind of a loose alliance and they didn’t want that they wanted something stronger
And so in 1787 the Congress of the Confederation called for a constitutional convention delegates from most of the states gathered in Philadelphia in the summer of 1787 and it’s fascinating reading to read stories of that summer of that convention and on the back table when
We’re done you might want to take a look there quite a few books about the Constitution and the Constitutional Convention fascinating reading and in the end what they did what they actually had been called on to do was to decide how to improve the Articles of Confederation and in their discussions
They very quickly realized this isn’t going to work we really need to throw it out and start with something completely different completely new and so in the end they went beyond their mandate from the Congress they completely ignored the Articles of Confederation and came up with this new document called a
Constitution the Congress accepted it and sent it out to the States for ratification it was ratified by 1789 and went into effect at that point so it’s interesting to look at the preamble like me many may have had to memorize it back in junior high well eventually all of them did but not
Right away when a new state joins the Union is had always had to ratify the Constitution as part of that initially they called it that very quickly after the nation got going under the Constitution they would call it that Congress accepted the application for statehood of the new state but in effect
It’s kind of the same thing so the preamble starts with the words We the People which is made for one interesting discussion down the centuries is the Constitution something that was created by the people of the United States or through their representatives by the people or was it something that was
Created by the states that had sent the delegates to the convention it really depends kind of on your political philosophy about which is right but it starts with we the people of the United States in order to form a more perfect union I’ve highlighted some of the
Things I want to particularly talk about in the context of the Articles of federación not having worked that phrase really stands out to me in order to form a more perfect union than what we’ve had for the last few years under the Articles of Confederation and to do all
Of these things that we have read so many times establish justice ensure domestic tranquility and so on do ordain and establish this constitution for the United States of America so keep in mind what that says is we the people do ordain and establish there is a concept
In political science of sovereignty in a monarchy they refer to the king or queen as the sovereign in whose name everything is done under the United States Constitution it is we the people who are sovereign and that in least in part is based on this language of the
Preamble that it was we the people who ordained and established this constitute so right from the beginning it’s an attempt to include everyone all of the citizens in this experiment it was certainly an experiment in 1787 I very strongly believe that it is still an experiment in 2017 historically speaking
We haven’t been doing it very long and we’re still some some noise and alleles as they grind and and we keep working at it keep trying to make it better the first three articles the Constitution is divided up into articles the first three articles establish the three branches of the federal government
So we’re going to go through that and if you remember we’re always talking in terms of those three branches of checks and balances the idea of the people who were at the convention was that they didn’t want any one branch of the three to become all-powerful because that
Would create an imbalance and a likelihood of some form of dictatorship or tyranny and that’s what they had just thrown off and so they were trying to avoid it so as we look at the checks and balances and also we’re going to look at some of the compromises that were made in
Politics is the art of compromise if anything is going to get done and the Constitutional Convention was a perfect example of compromises some of them 240 years later don’t look maybe so savory and we’ll take a look at some of those and some of them are you
Know we’ve just gotten used to them and they work so article 1 is the legislative branch all legislative powers are vested in a Congress which shall consist of a Senate and a House of Representatives right away that was a compromise in the convention you had big states among the 13 Virginia
Pennsylvania Massachusetts in terms of population you had small states you had Rhode Island Connecticut Maryland Georgia not so big the big states wanted a one-house legislature based on population well sure they did the small states wanted a one-house legislature with equal representation from each state they compromised that’s why we
Have a two-house Congress one house in each way right that’s not necessarily ordained by nature there’s actually one of the 50 states that has a unicameral legislature anybody happen to know which one it is Nebraska yeah all the other 49 I’ll have two house legislatures modeled on the Congress Nebraska said what are
We gonna waste that time for they went with one so the members of the House of Representatives are elected every two years that was very conscious on their part on especially keep in mind transportation and communication at the end of the 18th century right the only the only real way that could
Communicate with their constituents was to go home and for the ones who lived you know way north or way south from Philadelphia or later New York which became the capital it was pretty difficult but they wanted the members of the house to be closer to the people
They had to stand for re-election every two years which gave the people an opportunity to change if they didn’t like what their representative was doing section three or paragraph three here talks about how the number of Representatives will be apportioned between the states remember this is the
House that is based on representation by population here is another compromise and it’s a compromise that as I mentioned is not so savory especially from this distance the southern states the slaveholding states wanted the slaves to be counted in full to increase their representation in the House of Representatives the northern states the
Non-slaveholding states said absolutely not that’s you know these are not citizens they don’t function as citizens we’re not going to go with that which certainly was also in their best interest as smaller states to better balance in their favor the representation the compromise was that the whole number of free persons
Including those bound to service for a term of years indentured servitude that’s not slavery right and excluding Indians not taxed three fifths of all other persons in other words slaves so the founders of the Republic counted slaves as three-fifths of a person there were members from the north from the
Non-slaveholding state who wanted to write into the Constitution some of them an abolition of slavery complete southern states certainly weren’t going to go along with that their fallback position was to ban the importation of any more slaves into the country the compromise there was the South agreed okay you will let you ban
Importation of more slaves but only in 20 years so there’s a provision later on in the Constitution that no law can be passed banning importation of slaves before 1808 so you see the compromises that had to happen and already at the Constitutional Convention we’re seeing some of the splits some of the
Differences that a number of decades later are going to result in the Civil War because these compromises could hold for only so long paragraph five the House of Representatives shall choose their speaker that’s not important and the House of Representatives shall have the sole power of impeachment now that’s
A word that’s starting to be thrown around however you feel about that it’s out there and we have to understand how it works some of us remember that impeachment of a president has happened in our lifetime back in the 1990’s now impeachment is not removal from office impeachment is like an indictment and
It’s the House of Representatives that the Constitution specifically gives the authority to come down with that indictment or to impeach any federal officer including the president and as we’ll see it’s the Senate that then sits as a trial court for the impeachment again those of us who remember old enough to
Remember the 90s remember that that’s what happened with President Clinton yeah that is correct there is no recall process in federal for federal offices I’ve heard a little bit of discussion recently about some people wanting to add that wouldn’t hold my breath ya know that that’s a state-by-state thing and
It specifically has to do with state offices in the states that have it no recall under the Federal Constitution no however one of the things that is in the Constitution is that each house has sole authority to recognize the membership of somebody who has been elected or to say that this person has
Not been elected properly or a member of the House or that the house can can deny membership to a member of the House by certifying that the election was not proper or something along those lines the Senate can do the same with one of their doesn’t happen very much but they
Do have the authority to do that so the Senate composed of two senators from each state notice this chosen by the legislature of each state that was the original arrangement so that the Senators originally weren’t really representing directly the people of their state they were representing the state government they were representing
The state legislature as we’re going to see that was changed by an amendment in the early 20th century so that for a little over a hundred years now senators are elected by direct vote of the people and that fits in with an interesting pattern that we will see when we get to
The amendments as amendments were added over the last couple of centuries many of them have to do with expanding who gets to vote in federal elections there’s never been one that contracts who gets to vote that makes the number smaller there are several and we will
See that that expanded at the time of the Constitutional Convention and the first few decades of the United States government the states were left to decide who gets to vote in all elections including Federal Elections in fact in a couple of places the Constitution I can find it
Says that the I’m not going to go looking for that people those who may vote for these federal offices is defined by who gets to vote for the most numerous branch of the state legislature in each state so the state got to choose who got to vote and in that day and age
It was white male property owners adult of course over over 21 and as we’re going to see over the term of our history that has been steadily expanded so Senate begins to from each state it’s kind of funny there are some states that have two senators but only one number of
The House of Representatives there’s a special election in Montana I think actually tomorrow to fill that vacancy and Montana is a very small state in population so they get two senators they get one member of the House of Representatives it was kind of funny I’m originally from California we have two
Senators in that last count I think 56 members of the House something like that it’s the largest state in population the Vice President shall be president of the Senate but shall have no vote unless they’d be equally divided there’s been talk about that in the news since the
Last election the Republicans have a four-seat majority in the Senate 52 to 48 so if two Republicans don’t vote or vote with the Democrats it’s a tie vote but the vice president then gets to vote and since he is a Republican chances are that whatever the majority the
Republican majority wants passed he will go with them but that’s the only time the vice president gets to vote yes question is what’s the rationale for a senator serving six years instead of two or four again they wanted the house to be close to the people but they want
They saw the Senate as a kind of a moderating influence on a more pop what they expected to be a more populist House of Representatives where they thought the debates in the house might be more emotional more or ideological and they saw the Senate as a body of
Statesmen who would kind of be more even keeled and more statesmen like and so a six-year term would allow them to be kind of above the fray for a good part of time until they had to fit and and keep in mind again for the first hundred
In some years they were elected by the legislators so you know they’re there they’re their electors the people they had to lobby to get elected was a very small group and and so it was this idea of being above the frame being more statesmen like they’re a third of the
Senate is up for re-election every two years and in fact there’s a whole paragraph here that we’re not going to spend time on where they say that you know once the first Senate gets elected and you have to fill all the seats right away the first thing the Senate has to
Do is divide itself up into three classes one group that will be up for reelection in two years another group that will be up for reelection in four years another group that will serve the full six years and that got that staggered election thing going that we’ve had ever since the Senate shall
Have the sole power to try all impeachments and when the president of the United States is tried the Chief Justice becomes the head of the court in effect and presides over the Senate which again is what happened in the 90s with President Clinton and no person shall be convicted without two-thirds of the
Members present so that’s a high bar as it should be and paragraph seven is kind of interesting to all the Senate can do or the house in impeaching and the Senate in trying is they can throw him out of office which by the way hasn’t happened yet we’ve had to impeachments
Of presidents in both cases they were not convicted first one are the second one as we’ve been saying was President Clinton in the 90s anybody remember who the first one was Andrew Johnson right after the Civil War right after Lincoln’s assassination he was not real popular with the with the Congress
But but he was saved by one vote from being thrown out of office but a conviction by the Senate is not a basis for a criminal conviction it doesn’t mean that the president couldn’t beat the who’s been removed from office by impeachment couldn’t be tried for a
Crime once he’s out of office although that hasn’t happened either the one case where some people thought it might happen we’ve had one resignation of a president anybody Nixon right in the in the 1970s there were some people who wanted to see him criminally tried after he resigned the
Office President Ford his successor immediately gave him a pardon and that was off the books but it could have happened here as I mentioned this before each house shall be the judge of the elections returns and qualifications of the note of its own members I mentioned that a few minutes ago section 7
Paragraph 2 every bill which shall have passed the house Representatives and the Senate shall before it becomes law be presented to the president if he approves he signs it it becomes law if he doesn’t he returns it and we used to turn today veto the word isn’t in the
Constitution this is something that got into usage if I remember my my high school latin correctly i believe who word veto means i forbid in vetoing a bill the president has to send it back to congress with a message of why and perhaps with suggestions of if you clean
Up this provision a little bit and change that one over there then i’d sign it so it’s not just a flat no it’s it’s working together the two branches so we’ve got you know everything that’s going to become law has to be passed by both houses of Congress in identical
Language so there’s a check and a balance between the two houses of the Congress right if they don’t both pass it in the same language it isn’t law in fact you can see that going on right now the the health bill that the House of Representatives passed
A couple of weeks ago the Senate the Republican majority in the Senate has basically said we don’t like your bill we’re going to write our own health bill which means and if that passes the Senate then the two houses have to come together in a conference committee and
Work it out find ways of coming up with an identical bill that both houses will pass that doesn’t happen it doesn’t become law it then if they do pass it it goes to the president here’s a check and a balance on the Congress if the Congress over steps or does something
That the president thinks is wrong for whatever reason the president can veto it there’s a fair amount of power to the president but there’s a now a check and a balance on the veto that the Congress can reconsider and if they’ve both houses of the Congress vote two by two
Thirds of each house not not any longer a simple majority which is normally what you needed for the first time around if each house re passes the same bill with a two-thirds majority it’s law in spite of the president’s veto they could but the president would have to sign the
Law of the bill that the Congress passes and it may not want to so all of this is you know the checks and balances on each other to make sure that nobody runs away with the power yes you’re right an executive order is not law what it
Really is is an instruction to the departments of the executive branch you know here’s the boss saying this is what I want you departments that work for me this is what I want you to do or not to do and in fact if you look at the executive orders that have been signed
Since January 20th they’ve been quite a few of them some of them have been quite controversial and some of them have been suspended by the courts what they really are is they affect the functioning of the executive departments the executive orders about immigration and refugees is in effect instructions to the
Immigration Service as to who to let in this doesn’t need law there is an immigration and naturalization law that governs that but every law that’s passed by Congress is vague enough that you then need a whole set of rules as to actually how is it going to be applied
And there is a big body of literature called the federal register if you ever really have trouble sleeping I highly recommend it but it’s it’s what it’s what’s called administrative law and in every depart with any executive Department of the federal government has to know the rules
That apply to that agency really really well you can see an example of how those work right now there’s an issue about net neutrality that’s before the Federal Communications Commission FCC has issued a proposed new set of rules but statute requires the executive department that’s proposing new rules to make it public
For a comment period and members of the public have the right to send in their comments this is something as citizens we should all be paying attention to keep an eye on things that are of interest to us you are just as qualified as anybody as
A voter to send in your opinion and then the agency in this case the FCC once that comment period is over think it’s 90 days but don’t hold me to that they or their staff at least will take all of the comments that have been submitted and present them to the Commission in
Some kind of a of a shortened version so that they can take into account public opinion about these rules case law is what the courts decide I mentioned earlier that a lot of what’s in here is vague enough to need interpretation as to how it gets
Applied and I was actually going to make it a little bit of a quiz as we get to article 3 but we’re very used to the idea that the Supreme Court is the final arbiter of what a federal statute means actually in most cases it’s the federal
Courts of appeals because the in in most cases that are in federal courts you don’t have the right of appeal to the Supreme Court you have to apply and ask them to accept your case and in most cases they don’t they’re only doing maybe 200 cases a year that’s all so
Most federal cases go as high as the circuit courts of appeals and they establish the law but whatever rule the court the final court in a case comes up with that is the law on that particular point and any lawyer whether in a criminal civil or an administrative type
Of proceeding will have to go and look at all of the cases that interpreted that particular provision in fact I will show you in a little while there’s something called an annotated Constitution the little pamphlets that we have here have a few cases in them
But certainly not a full slate of them I will show you where on the internet you can find an annotated Constitution and again if you really have trouble sleeping you can look this is what I spent three years in law school doing a long time ago of studying the case law
About a particular thing now as far as they relate to the executive orders executive orders still have to pass muster in terms of protections of Rights that are within the Constitution and we’re going to see that more we’ll see it a little bit in the main body of the
Constitution but we’re going to see it more when we get to the amount so hold the thought question was asked how do I know as a citizen when there are rules being proposed by a federal agency that effect something that I’m interested in absolutely outstanding question I think the best answer is get
Very familiar with the website of the agency that you’re particularly interested in whether it’s FCC EPA whatever it is immigration they have to advertise the fact that they are proposing changes to the rules and putting it on their websites the cheapest advertising so this in this day
And age that makes it real easy but it does require us as citizens to be a little more proactive question is is the agency obligated to to actually pay attention to our comments um not really I mean yes they are but who’s going to test it um and they can still decide you
Know even if you get 99% on one side of the issue and the agency decides on the other side of the issue they still have that power and authority and in a system such as ours the remedy that we have as citizens is to throw out the elected
People who appointed them as a new the new elected people will appoint other people so it isn’t always the response of the system is rarely quick it is kind of slow is kind of glacial sometimes but I’ve heard some people suggest that maybe that’s just as well because an
Overnight revolution anywhere in the world always carries within at the seeds of its own destruction I had forgotten that thank you yes Federal Register has a place where you can subscribe to notices of proposed rule changes so there you go even easier than looking at the websites thank you
So we’ve got checks and balances there section eight is very important because it lists all the things that the Congress shall have the power to do the people at the Constitutional Convention in 1787 in Philadelphia saw the government that they were creating as a government of delegated powers if it
Says in the Constitution the government can do it then the government can do it if it doesn’t explicitly say in the Constitution that the government can do it then their attitude was the government can’t do it now that’s been interpreted drastically over the last 240 years but this is where it begins
And many of these things are the things that the the government under the Articles of Confederation didn’t have the power to do and so they’re trying to remedy that trying to form a more perfect union power to lay and collect taxes duties imposts provide for the common defense borrow money regulate
Commerce now paragraph three to regulate commerce among the several states up until about the 1930s the federal courts by and large were very conservative about what they would accept that the executive branch could do but during the Roosevelt administration in the 1930s and partly in the in the crisis of the
Depression the court kind of changed tack and ever since then has used paragraph three to regulate commerce among the several states as a way of saying if anything that’s involved in an issue in a case before the court crosses a state line that is interstate commerce and the federal government has the
Authority to regulate it not all justices on the Supreme Court have agreed with that but that’s been the pattern pretty much since the 1930s paragraph 11 Congress shall have the power to declare war we’ve been in a few wars in the last few decades where there’s been no
Declaration that’s been a subject of a lot of debate among constitutional scholars that is a legacy of the 18th century most nations didn’t have much Navy to speak of other than the British perhaps and the government’s would grant letters of marque which was basically a license to to declare oneself the navy
Of the home country either a private ship to act as a naval vessel in effect the other side of course always said no that you just pirates but it was an accepted thing in the in the 18th century in the international law Korea was a police option under the UN eh yeah
The question was since in Vietnam and also in Korea there was no declaration of war by the Congress as there had been at the beginning of World War two how could they Institute the draft and all of that discussion for another day but there were people who argued they
Couldn’t and and you know those of us who are old enough to remember the Gulf of Tonkin Resolution which the Johnson administration used as a legal claim to wage a war in Vietnam which we later found out was a lie it was a very big political issue and there were very few
Members of the Congress who voted against the Gulf of Tonkin Resolution and many people considered them at the time to be traitors unpatriotic no some people think that they were vindicated later on when we found out that what what the Johnson administration had presented to the Congress had never
Happened so again here we’re seeing checks and balances many people see beginning with President Johnson in the nineteen six these Johnson certainly expanded the powers of the executive at the expense of the legislative branch many people saw a kind of an evening out of the power when when Nixon was almost
Impeached and ended up having to resign in the 70s it got it built up again I think the executive branch I think again took on more more power in the balance under Reagan and under Clinton and under the second Bush after 9/11 which was justified by a national emergency these
Have always been debated Oh as they should be that’s why the system is built the way it is there has there should be debated when the day comes that there is no debate I’ll start worrying section 9 the migration or importation this is the the provision that allows Congress to
Pass a law banning importation of new slaves but only in 1808 no state can enter into a treaty or alliance with another country we kind of laugh at that but in the structure that existed before the Constitution there were a lot of people who were worried about that and
If that had happened the United States probably never would have happened as it did so history is an interesting animal yes sir I’m sorry yes I meant to bold that and I forgotten thank you for catching it section nine paragraph eight no title of nobility shall be granted by the United State
Or trust under them shell without the consent of Congress except of any present emoluments that’s been in the news office or title of any kind whatever from any King prince or foreign state thank you for catching them yes I did want to talk about them what’s an e
Monument a gift of something of value a gift of valuing yeah no clearly clearly they can’t accept say a title of nobility but without permission of Congress I don’t know no remember of Congress as ever but the emolument Clause has very much been in the news right there are no federal
Court cases defining the emoluments clause none so we are in new territory if you’ve been reading the news on this there are people who are saying that because the president has not divested himself of business properties business interests that for example if a representative of a foreign state
Chooses to stay in a Trump Hotel that could be seen as currying favor with the administration and he’s gaining a profit from it I don’t know there are no cases yes the only way that a violation of the Constitution gets stopped is through litigation or impeachment and and we
Need to and because both of these things are out there in the air we need to differentiate I I mentioned that impeachment cannot be a basis for criminal conviction that can be done separately but it isn’t the same thing um but also we have to keep in mind I
Think a lot of people who are beginning to talk about impeachment are kind of missing the mark a little bit when they talk about you know has there been a violation of law well but impeachment is not a criminal prosecution it’s a political act and so you know the the
Grounds for impeachment it does say high crimes and misdemeanors what does that mean I don’t know I don’t think anybody knows for sure and essentially it is whatever the house and the Senate say it is if they want to remove a president that there’s clear litigation there’s clear case law on
Oh thank you for reminding what’s the definition of obstruction of justice which of course is being brought up by quite a few people as a potential grounds for impeachment not quite there yet but that’s certainly the basis for all of these investigations that we’re hearing about in the news um without
Stating an opinion which I don’t want to do obstruction of justice means doing something to prevent an investigation or prosecution from lawfully going forward impeachment is voted on by the House of Representatives and then the Senate sits as a trial court as kind of like a very
Big jury and it’s the Senate that decides whether or not the impeached president will be removed from office and the two times in our history that a president has been impeached by the House of Representatives Andrew Johnson in the 1860s Bill Clinton in the 1990s the House impeached the Senate acquitted
Which means that neither man was removed from office oh yes there have been a number of cases of federal judges not a lot but a few down the years where federal judges have been removed from office through the process of impeachment pretty much any elected or appointed office in the United States
Government or in state government no no not an employee but a secretary of a cabinet Department for example or one of the deputy secretaries and so on but your average employee in the field no that’s not it they could be fired if they do something wrong but that’s not
An impeachment process so article 2 is the executive branch vested in a president of the United States of America hold office for a term of four years and together with the vice president and chosen for the same term and then explains basically the electoral college if you thought that we the people
Directly elect the president you are sadly missing formed as a matter of fact in the last 16 years twice the Electoral College has chosen as president someone who did not win the popular vote twice this last election in 2016 and in 2000 when when Al Gore got
More popular votes but George Bush was elected by the by the Electoral College there has long been debate in the country about doing away with the electoral college it kind of gives greater weight to the smaller states in a sense that would require a constitutional amendment and
We’re going to see in a few minutes how that could happen there is no proposed constitutional amendment per se before the public today there’s some discussion about it and every time that happens and it had happened a couple of times before back in the in the 19th century that you had
One person winning the popular vote and somebody else getting elected by the electoral college from time to time there’s been discussion but there has never been as far as I know an actual amendment proposed to do away with the electoral college yeah exactly right the electoral college was written into the
Constitution at the Constitutional Convention in a sense because the people at the convention who were writing this document didn’t entirely trust the people and Thomas Jefferson wasn’t there if he had been there it might have been a little bit different because he did trust the people he was he was the
Minister for the new nation to France at the time so he wasn’t at the Constitutional Convention but this was again a compromise there were some people at the convention who wanted a direct popular vote and there were other people who said that’s we don’t entirely trust the people to know what’s in their
Best interests and so we want the states to appoint people who are maybe better educated who are more familiar with political theory with the issues of the day and they will make a more statesman like choice again that goes back to a time when the franchise was extremely limited
To white male property owners at least age 21 where in some states 25 as we have expanded the vote to a much bigger percentage of the population some people argue it’s time to do away with the electoral college again we have the power to let our opinions be known
To our Senators and Representatives that we would like to see such a thing happen if that’s what we would like how is it that the electoral college was an advantage for the smaller states at the time there were only of the 13 states that were maybe three or four that
Really could be considered big in population and the rest were a lot smaller it gave that the in in a straight popular vote you know the I don’t know making up numbers here 50,000 people in Connecticut are not going to have as much of a voice as half a
Million people in Virginia now the Electoral College originally did not require the electors of each state to vote in accordance with the popular vote in that state today most states have passed laws at the state level requiring the electors to vote according to who won the popular vote in that state but
That’s relatively recent and in the early in the early decades of the nation the electors could vote for whoever they wanted to well it kind of does it’s it’s become really a mongrel it isn’t what it was and it isn’t what a lot of people want and so among political scientists
There’s more and more of her discussion but it still hasn’t reached critical mass among the politicians to propose an amendment in the last election the Democratic candidate won California by three million votes are now nationwide by three million with California by at least a million she got the electoral
Votes of California whether she got annex a million votes more than the other candidate or one vote more than the other candidate so in a sense all those extra votes are kind of wasted they don’t count really beyond the bare majority it’s a complicated thing and a
Lot of it very much subject to opinion now here’s the emoluments clause as it pertains to the president the other one who pertained to congress but it’s the same thing same idea did you know that the oath of office that the president takes is set out word-for-word in the constitution there it is
Paragraph eight what’s missing from that yeah I don’t know how far it goes back with the custom has been to finish that with so help me God but that’s not part of the constitutionally mandated oath of office now the president doesn’t swear loyalty to the to the United States he
Or she doesn’t swear loyalty to the government it’s to preserve protect and defend the Constitution that’s the president’s job and the oath taken by members of Congress is very similar and they’re all taking an oath basically to abide by the Constitution well in theory yes and the same thing could be said
About every member of Congress when a member of Congress votes up or down on a piece of legislation they should also be making a determination about whether this complies with the Constitution or not so in theory yes each one of them can make up their own mind but in
Practical terms they generally go by the interpretation that the courts have given to the extent that the courts have ruled on the issue of the moment sometimes there’s an issue that the courts have get ruled on and so each one of them is supposed to make their own best judgment
And if there’s a big difference of opinion on that pretty much guaranteed it will eventually get to the courts and the courts will figure it out but once it’s been decided by the courts you go against that at your peril you can there’s nothing that says you can’t vote
A different way but you’re kind of setting yourself up for the strong possibility that you’re going to get overruled and nobody likes that president shall be the commander-in-chief of the Armed Forces and the president may require the opinion in writing of the principal officer in each of the executive
Departments that’s what today we call the secretaries of the various cabinet offices they hadn’t started using that language yet but that’s what that means the president has the power with the device and consent of the Senate to make treaties which require two-thirds vote of the Senators present and the
President nominates and again with his vison consent of the Senate appoints ambassadors other public ministers and consuls judges of the Supreme Court and all other officers of the United States so whenever there’s a change of administration as we’ve just seen in the last few months the heads of all the
Departments going down about depending on the department two three sometimes four levels at the top of each department those are appointments that the Senate must confirm so again we’ve got to check in a balance that the president in theory can appoint anybody he wants but then the Senate steps in
And does investigations and asks questions and we have seen that things come out in that process where sometimes people the Senate refuses to approve or there’s a big difference of opinion when the current Secretary of Education was confirmed by the Senate as far as I remember for the first time in history
The Vice President had to break the tie to confirm her appointment of Secretary of Education it was that much difference of opinion and the same thing with treaties any time the president concludes a treaty with another country the Senate has to approve it by a two-thirds majority
Checks and balances and we also saw very recently the an appointment to the Supreme Court and to all the federal courts really have to be approved we just had a vacancy filled on the Supreme Court through that process just a few weeks ago yes if there are appropriations involved it might just be
I haven’t seen the language of it yeah the question is about this treaty as the president just concluded with Saudi Arabia for several billion dollars in armaments yes certainly if there’s any federal money involved it has to go past both houses of Congress for an appropriation doctrine appropriation no
That’s that’s a simple majority if it’s just a business deal that the president helped although I believe and I’m not an expert on this that a contract with for armaments with a foreign power is required by law to be approved by the Senate I think so
Not clear I’m not real sure on that section for the president vice president all civil officers of the United States shall be removed from office on impeachment foreign conviction of treason bribery those are fairly clear right or other high crimes and misdemeanors that’s not so clear so as I
Said before if the House wants it politically wants to impeach the president they’re going to do it and they will find a way under that language to justify and same thing with the Senate in trying the case article 3 the judicial power of the United States
Vested in one Supreme Court and in such inferior courts as the Congress made from time to time ordained so all of the federal court system every state has at least one District Court which is a trial level court a number of states are included in a Circuit Court of Appeals
Colorado is in I believe the Tenth Circuit which is based in Denver again I’m originally from California and practice law there California’s in the Ninth Circuit which geographically is the biggest it goes it goes in everything cludes certainly Nevada maybe Utah I don’t remember California Oregon Washington Idaho Hawaii and
Alaska and that’s based in San Francisco president is talking about maybe breaking up to the ninth circuit so that’s that system also the you notice that the the Constitution doesn’t say how many justices will sit on the Supreme Court in the early days of the nation the original Supreme Court I
Believe was seven justices eventually I’m not sure when that was expanded to nine has never been more than nine although there’s a really interesting piece of history back in the 1930s when President Roosevelt tried to do what was called a court packing scheme he wanted the Congress to say that anytime a
Supreme Court justice reached the age of seventy they could stay on the court but a new younger justice could be appointed in addition up to I think a total of fifteen it was last out of Congress didn’t get very far what is not in article three that sets up the judicial
Power of the federal government is what we’ve been talking about the authority of the courts to say what the Constitution means it’s not in the Constitution but very early on in 1803 Chief Justice John Marshall another fascinating personality in the early days of the Republic wrote an opinion in
A case called Marbury vs. Madison the details of the case don’t interest us right now it’s kind of arcane for lawyers to study but essentially what Marshall said the key language a law repugnant to the Constitution is void it’s a power that the Supreme Court in effect took on itself
Although I think it makes sense and maybe that’s just my law school training but the courts are called on to enforce the laws and if a case is brought to them under a law that the justices of the Supreme Court think is repugnant to the Constitution they can’t in all
Honesty enforce that law so to me it makes sense but that has been the policy of the courts and of the functioning of the government the other branch and it does act as a check and balance on the other branches very much so although the other branches have not always
Completely respected that President Andrew Jackson who had a personal feud with John Marshall for decades they didn’t like each other Marshall came came down with a ruling on a particular thing that Jackson wanted to do as president and Jackson said fine let Marshall enforce his own opinion of
Course the Supreme Court has no way of enforcing it it depends on the executive branch and the legislative branch to follow its rulings I think what Jackson wanted to do was send a military expedition against the Seminoles in Florida anything Marshall said in the particular way Jackson wanted to do it
You can’t do it and he wasn’t impressed so we have the three first three articles legislative executive judicial gives us the skeleton the framework the outline of how our government is supposed to operate on a very basic level but as we’re seeing there’s a lot of blanks to be filled in
And that’s part of what’s been going on part of what we as a people we as a nation have been doing for the last 240 years and I’ve often felt you know as long as we’re still talking about it as long as even we have differences of
Opinion on it that may be a healthy thing if we ever reach a point where most of us agree and we shout down the few who don’t agree then we’re in trouble that’s an opinion the next few articles are in a sense procedural article four of Full Faith and Credit shall be given
In each state to the public acts records and judicial proceedings of every other state a little bit technical new states may be admitted by the Congress into this Union but you can’t split up a state and have it come back in as two states unless the legislature of that
State agrees so that’s some protection mode of amendment this is important the Congress whenever two-thirds of both houses shall deem it necessary shall propose amendments so member of Congress can introduce a proposed constitutional amendment has to be passed by two-thirds of each house and then it has to be
Affirmed ratified by the Legislature’s of three-quarters of the states and there is a provision in there that the Congress can say that not the legislators but each state will call a special convention to determine whether it will ratify that has yet to happen it’s always been Congress passes by
Two-thirds state three-quarters of the states ratified 2/3 of the state legislatures can call for a new constitutional convention it’s never happened yet last I checked 29 states have voted to call for a new constitutional convention five more are needed yeah and just as the original Constitutional Convention
Of 1787 way exceeded its mandate if enough states call for a constitutional convention is really no limit on what that convention can consider I don’t think I’m not sure I don’t think that Colorado has been one of the states to call for that I don’t think there’s any
Statute of limitations on it but I’m again it’s it’s it’s it’s unknown territory hasn’t happened before so stay tuned but the amendments proposed by the convention would still have to be ratified by three-quarters of the states correct so there is that protection still article six paragraph three includes this statement no religious
Test shall ever be required as a qualification to any office or public trust under the United States so the Fed neither the federal government nor any state can pass a law saying Oh for example Catholics can’t be elected to office or Jews can’t be elected to
Office or Muslims can’t be elected to us can’t stand under that phrase now that’s got no control over how people vote that’s simply whether there is a test in law to serve in a public office and also most of the Constitution speaks only to the federal government this kind of
Language includes the states as well under the United States well that’s the original Constitution in its in its essence when the Constitution was sent out to the States for ratification some of the some people in the ratifying conventions in some of the states said we don’t want to approve this there’s no
Protection for for civil rights there’s no protection for certain there’s no bill of rights and members of the constitute some of the members of the Constitutional Convention the Federalists so-called said well there doesn’t need to be because nowhere does it say in this document of delegated powers that the government can take away
Those rights and a lot of people said we don’t care we want expelled out and I know for a fact that there were quite a few people in the New York State convention that refused to ratify unless there was a promise that there would be a bill of rights passed as soon as
Possible once the Constitution went into effect the the people who were pushing the Constitution said ok we’ll agree to that it was ratified and very early on seventeen ninety-one two years after Congress first convened the Bill of Rights was ratified actually there were twelve amendments that were concluded in it two
Of them at the time did not pass did not get ratified by enough states we were left in with what we have come to know as the ten amendments of the Bill of Rights these have become so fundamental so fundamental to how our system functions that we have to be familiar
With them we have to see what’s going on with them some of them are a little more obscure some of them are a lot more out there and under discussion first amendment has several the very first thing that’s included in this bill of rights is freedom of religion very first
Thing Congress shall make no law respecting an establishment of religion or prohibiting free exercise thereof establishment of religion meant that whatever your own religion was you paid taxes to support the established religion of the state which in most of the early States was the Anglican Church the Church of England later to become
The Episcopal Church in America in New England it was the Congregational churches and in fact gradually an edit remember it says Congress shall make no law so this didn’t originally apply to the states but very early on the state started doing away with established churches in the States and I think the
Last one to do away with it was Massachusetts in the 1820s I believe so thirty years after the founding of the Republic free speech freedom of press right of people peaceably to assemble and to petition the government for a redress of grievances these are so basic
To what this country is about that we need to know about these yes the question is that this doesn’t the First Amendment doesn’t only apply to citizens it applies to anybody well the courts have never been in complete agreement with that inter the Supreme Court in the late nineteen
1940s upheld the holding of citizens and non-citizens of Japanese descent in camps and they justified it by saying it’s a time of war I have seen arguments today about whether or not a one of the arguments against the president’s executive orders having to do with with
Who’s going to be allowed in the country one of the arguments against it was that it seemed to target Muslims and that this would be a violation of the First Amendment the current state of the law is that it is being applied but it hasn’t always been the case and it could
Go back it could change nothing is ever decided in a completely final way you know it’s been pointed out by constitutional scholars that the Constitution means whatever the current Supreme Court last Supreme Court to decide on an issue says it means and that has changed my classic example of
How that has happened 1896 the Supreme Court of the United States ruled that separate but equal accommodation of people of different races is perfectly acceptable under the Constitution just under 50 years later the same institution obviously different people in Brown versus Board of Education ruled separate is inherently unequal what comes next
Stay tuned yes sir not the Constitution there is a provision in the Constitution that says in time of war or no what it says is that the writ of habeas corpus may not be suspended except in time of war and I think that was the basis for the Supreme Court’s ruling on the
Japanese internment and it was also President Lincoln during the Civil War suspended the writ of habeas corpus but that’s just the writ of habeas corpus that is not the whole Constitution you have to have a lawsuit the courts the United States courts are not proactive in some countries the
Courts are proactive I believe in France and in Spain the courts are in effect also the prosecutors not the case in the United States the courts here are not proactive they are passive somebody has to bring a suit a legal action whether it’s criminal or civil depending on the
Issue before the courts will act and then it has to climb the ladder of the appellate review and that takes a while I don’t know of any provision by which citizens can remove somebody from office by litigation the courts don’t have the power to remove somebody from federal
Office only Congress does by impeachment but then the Congress would have to vote yeah if they’re convicted in the court of public opinion or if they’re convicted of a crime yes public opinion would probably force that body to to expel that member which the body can do
But but no the citizens cannot the courts will will not remove somebody from from public office certainly not from elected office second amendments has been from time to time the subject of discussion and litigation and the argument really is you can divide – very short
Right and you kind of divide it up into two parts and that’s what the discussion has been which part of it gets the emphasis a well-regulated militia being necessary to the security of the Free State hold that thought the right of the people to keep and bear arms shall not
Be infringed okay if the first part wasn’t there the second part would be a lot clearer right but with it there how does that change the meaning of the last part and that has been the subject of litigation in the courts at the moment it’s not tremendously clear the latest
Ruling has been that people do have the right to have terms but the arguments going to continue amendment three is one that there has never been any litigation on this is something that the British were doing in the colonies during the colonial period they were quartering soldiers in private homes at the expense
Of the home owners and without their agreement and they wanted to make sure that’s not going to happen as far as I know the government’s never tried to do that in the south I think to some extent and probably from my understanding quite a few times that it was done it was done
Not right not not legally and not the way it could or should have been done but that was in the in a period of war it’s people get carried away Fourth Amendment the key phrase here is nobody no warrant can be issued for a rest or for going through your your houses and
Papers in effect without probable cause police can’t search without a warrant and it can only get a warrant for probable cause yes that’s an yes there’s an it is currently an issue about the police taking money or private property that they think has been used in the furtherance of criminal acts and even
After perhaps the charges have been dismissed or the person has been acquitted they don’t get their money or their property back that is the subject of current litigation and I think we just have to stay tuned and see what the courts are going to do with it at the
Moment it appears that the law permits that but whether the Constitution permits that the courts are going to have to decide um asking for passwords on phones and computers and airports and such again this is new territory when the when the Fourth Amendment was written we didn’t have cell phones and
Computers we probably couldn’t even imagine something like that they’re thinking about the police knocking on your door at midnight and barging in and going through everything right which the British authorities did during the colonial period as technology has advanced and changed it’s all had to be laid
That one too is going to have to be litigated ah the famous fifth amendment no person nor shall any person be subject first of all subject for the same offense to be twice put in jeopardy of life or limb this it’s called double jeopardy if you’re acquitted of a crime
You can’t be tried for the same crime again even if new evidence comes up the state has one shot at you that’s all they get nor shall be compelled in any criminal case to be a witness against himself this is the famous taking with if which if you’ve been reading the news
General Flynn is claimed and Fifth Amendment to prevent him to keep him from testifying before congressional committees it’s it’s designed so that nobody is forced to incriminate themselves in so many non democratic countries throughout history and still currently in many places in the world we’ve seen coerced confessions and
That’s the kind of thing that I think the founders were trying to prevent trying to avoid and if you’ve watched law and order you know it’s entirely up to a criminal defendant whether he or she testifies in his or her own defense but once they do they’re subject to cross-examination so
It’s it’s always an important strategic decision on the part of the defendant and that defendants lawyers nor shall anyone be deprived of life liberty or property without due process of law and this goes to the question of a moment ago about the police confiscating money and property and then not returning it
If the person is acquitted there’s been no due process of law to deprive that person of those things for whatever it’s worth my opinion is that’s unconstitutional based on this we’ll see what the courts say there are always other arguments on North shall private property be taken for public use without
Just compensation eminent domain exactly a public agency has the authority to take private property for public or a legitimate public use but the owner must be compensated fairly and whether it’s litigation it’s all it’s never about whether or not the eight the government agency has the power to take a property
They do the question is always compensation what’s a fair compensation sixth amendment in criminal prosecutions the accused shall enjoy the right to a speedy and public trial no star chambers no dragging it out by the government and this is why for everybody’s benefit we got to make sure the system works right
You know lawyers who make their living defending criminal defendants you know often face criticism you defend people like that and the answer is they’re not defending the individual they’re defending the system because I got to tell you if I’m ever wrongfully accused of something I want the system working real good real good
Seven has to do with with civil suits really doesn’t have much effect anymore eight no excessive bail or excessive fines or and the part that’s usually argued about cruel and unusual punishment and it’s a very subjective phrase I will give you that it is very subjective it isn’t a very satisfactory
Answer that I’m going to give you and the question has to do with the interest of the victim isn’t really taken into account in whether or not a punishment is cruel and unusual it isn’t a very satisfactory answer but but the basic answer is that the victim is not
Actually a party to the litigation there are laws that have given the victim of voice in the litigation but the actual parties to the litigation are the state and the defendant article ten and nine again is kind of technical ten powers not delegated to the United States by the Constitution nor
Prohibited by it to the states are reserved to the States or to the people this has been cited many times in litigation that argues between and this is an argument that’s been going on since the founding of the Republic and will no doubt continue forever the argument about a strong federal
Government versus the rights of states in a technical sense that’s what the Civil War was fought about but on into modern times the argument continues the question has to do with whether the ninth amendment has ever been used in litigation to say argue against a current issue before the courts where
Some people are claiming that religious freedom gives them the right to discriminate against other people I will be very honest with you I am NOT up on all the details of that ongoing litigations that’s how I would read it but again doesn’t matter what I think or
What you think of matters what the court thinks in the end okay that’s the Bill of Rights think about how often those things listed in the Bill of Rights are are invoked that come up in our living in in this country and living in the system that we do now we’re getting into
Additional amendments and you know frankly there have been 27 amendments in 240 years if you take out the 10 for the Bill of Rights they’ve only been 17 in 240 years that’s pretty amazing so very quickly we’re going to run through these and keep in mind what I
Said early on one of the things that’s going to be happening here is the expansion of the vote to more and more members of society eleven is a kind of a technical thing having to do with jurisdiction of which court over what twelfth amendment actually kind of redid
In some ways the way the electoral college work and the ultimate result of it was before the twelfth amendment which was 1804 I think yeah 1804 people ran for president and whoever got the most votes was president and whoever got the second-highest votes was by president they didn’t run on tickets
Like we’re used to now and they very quickly saw that wasn’t working because he had people of different parties the founders had hoped there wouldn’t be parties sorry didn’t work so that was the main effect of the 12th amendment 13th amendment following the Civil War 1865 abolishes slavery both federal
Government and state governments 15th amendment also in the wake of the Civil War 1868 this is the where the rule comes where anybody born in the United States is a citizen or if they’re naturalized under law and no state remember Bill of Rights applied to the
Federal government now a lot of them are being applied to the states by amendments nor shall any state deprive any person of life liberty or property without due process of law nor deny to any person within its jurisdiction equal protection of the laws due process and equal protection have
Been the basis of huge numbers of cases in the Supreme Court in the federal courts sense of this past in 1868 this is very very central to a lot of what goes on fifteenth amendment extends the right to vote to anyone who may have been a slave before the Civil War and it
Will not be denied on the basis of race color or previous condition of servitude there’s the slavery at this point we’re still assuming it’s men stay tuned nineteen thirteen sixteenth amendment permitted the federal government to impose an income tax there were many people who felt that that was not constitutional before that amendment
They passed an amendment by golly 17th amendment is what changed the election of senators to direct election by the voters 18th amendment was prohibition that was such a big success that a few years later to cast another amendment withdrawing that amendment that’s the only time that’s ever happened that one
Amendment was passed to do away with another one 19th amendment vote gets expanded to women now before this the states could give voting rights in state elections to women and some did but in 1920 it became the basis in all Federal Elections and I’m kind of amused by the language how
Language changes on account of sex today we probably say gender 20th amendments changed when a new president was inaugurated it had been March this puts it back to January faster communication faster travel it didn’t need to be such a long period of time 21st repealed the 18th prohibition 20
Seconds term limitations for the president passed in the wake of Franklin Roosevelt being elected four times 23rd District of Columbia gets to vote for president which they had never done before fact there’s a provision in the original Constitution that says people living in the seat of government shall
Not have the right to vote for for president they’re still not represented by voting representatives in Congress they do have non-voting representatives in Congress during the civil rights era twenty-fourth amendment abolished any poll tax that was being imposed by many of the southern states on people of color 25th amendment has been mentioned
In the last few months this makes it clear that the vice-president becomes president if the president resigns or dies that wasn’t clearing the original Constitution when the first death in office happened William Henry Harrison in 1840 one a lot of people figured that his vice president John Tyler was only
Acting president and they’d have to call a new election Tyler just said no I’m president and that’s stuck but this also provides for removal of the president from office if the president is incapacitated physically or mentally and the vice president can initiate that with agreement of the majority of the
Cabinet I recommend going and reading this it’s a very interesting language but this could come into play the cabinet with the vice president can report to the Congress that they believe that the president is incapacitated which triggers this but the president could then send a message to Congress
Saying oh not I’m fine and if the price president and the cabinet members don’t back down then Congress decides Woodrow Wilson was incapacitated for the last year and a half to two years of his presidency had a stroke and everybody basically knew that his wife was running
The country but she’d never been elected so I think that was the impetus but it didn’t happen til the 1960s forty some years later so it took a while if this is ever if you watched the West Wing this provision gets invoked when the president’s daughter gets kidnapped by
Terrorists if this ever gets invoked in real life it is tremendously complicated and I it’s going to be ugly if it ever actually happens 26th amendment during the Vietnam era lowered the federal voting age to 18 and the 27th amendment is amusing it was passed by the Congress
And sent to the states in 1789 as part of the original Bill of Rights but not enough states ratified it and it just sat there for a couple of hundred years until that in the 90s I think it was some citizen yeah 1992 there was a
Citizen who saw it on the books that had been out there he said you know I think that ought to be passed and he started writing letters to members of state legislatures that hadn’t considered it of course there were a lot more states now turn their head and what it was
First sent out so it needed to be ratified by more but he got enough states to ratify it so that even though it was sent out to the states in nine 1789 didn’t get ratified until 1992 which shows you know the no statute of limitation now on some amendments
Congress now says this has to happen within seven years has to be ratified million of state and that’s what happened to the Equal Rights Amendment that was passed by Congress within and it said it had to be ratified by no States within seven years didn’t happen
Died we had to rush through the last part you’ve been very patient I thank you for that is so much more that could be said I wanted to show you an annotated Constitution online congress.gov slash Constitution – annotated just Google annotated Constitution and it come up and enlist all the cases and
Commentary from constitutional scholars about what each provision means and they talk about how cases down the years have been have have changed the meaning or added to interpretation of this whatever your political opinions whatever your political viewpoints about what’s going on today there are serious constitutional issues under discussion
That may come to the fore and really inform how we as a nation continue there’s a story that after the last day of the Constitutional Convention as Benjamin Franklin was leaving Independence Hall to walk home the wife of the mayor of Philadelphia stopped him on the sidewalk and said dr. Franklin
What kind of government have you given us and Franklin’s answer was a republic madam if you can keep it we’re still testing that if we can keep it let’s all be informed let’s be active as citizens whatever our points of view are thank you for your kindness [Applause]
