[BLANK_AUDIO] Welcome back. So let's talk numbers. How many persons are supposed to be in the House of Representatives, or the Senate, or the Supreme Court? Well if we look at the written constitution we say two Senators for each State. That's pretty cut and dry. But if we look at the written constitution it doesn't really specify how big the Supreme Court should be. Or how big the House of Representatives should be. At least, there's a very wide range for the House of Representatives that the text says, you have to have one representative for each state. So, that means you can have you know, as few as, as 50. Or and the text also sets a limit. But that limit actually to, it would, given today's population you could have 5,000. And yet, actually we don't have a house of representatives of 50, that's kind of unimaginable. And we don't have a house of representatives of 5,000, I think that's also unimaginable. And the unwritten Constitution actually narrows considerably the range that the written Constitution permits. I think the unwritten Constitution really says Gee, the, the House of Representatives? That's supposed to be the people's branch. It's supposed to be closer to people. It's supposed to be the most numerous branch of the, the Congress. And so it would be pretty weird to have fewer representatives and Senators. You gotta have two Senators from each state on average. You gotta have you have tw-, you have two Senators from each state in total, so 100. So it would be very weird to have a House of Representatives that were ever smaller. Than the Senate. And so from the very beginning actually the House of Representatives after the first census was bigger than it had to be because actually the critics of the Constitution worried that the House was too small. It was going to be unrepresentative, only a few great men with great reputations were going to get elected. And so, actually, the Federalists promised, even during the ratification prob-, pro-, process, don't worry, we're going to actually make the, the, the House of Representatives as big as the, as the text allows. We're going to, basically as soon as the first census occurs, we're going to have a House of a 100 members, the original House until that first census, was 65 members. But the framers of the constitution, the Federalists, said don't worry when we have a census we'll pump it up to a 100. And, we'll keep increasing it until it gets to you know, somewhere around 200, and, only then will we begin to, to think about leveling off or something. And they were true to their word. That, that promise that they made in the ratification process, was part of an unwritten constitution. The promise was that the House of Representatives would start after the first census at 100, and keep growing at a substantial cliff and it did. And there's some structural reasons why that makes sense. Once the House has a certain number, let's say 150, it's not going to be And when there's a new census, and census happens every ten years, it's not going to be in the interest of, of most House members to try to shrink it down because that would mean some of them are kind of guaranteed. To, to not to be in the next house so, so it kind of just functions as a rackshift. it, it hasn't really ever dramatically decreased in size. I think there was one period where it dipped a little bit but. But basically it, it increased until it got pretty big, 435, and at that point basically early in the 20th century I think the thought was, gee, it can't keep growing infinitely, so maybe this is sort of a good size, and so by statute Not by constitutional provision, but by statute the house is 435. So, way bigger than the 50 that would be permissible, way smaller than the 5,000 would be permissible. But you can see how the system itself creates kind of certain incentives. For congress people to listen to constituents. Constituents wanted something bigger than one representative per state. but, you don't want it so big that they can't even talk to each other and, and deliberate. So that's the house. Remember, the Senate's easy. The text is clear, two senators per state. What about the judiciary? Well, we now have nine people on the Supreme Court. But we've had as few as five. At the founding it was six. It went down to five at one point. It's gone up to as many as ten. And, and so that's not fixed by the text of the Constitution. Our tradition has been nine ever since the, you know, for, for the 20th century, throughout the 20th century. Franklin Roosevelt very famously tried to change the number in his court packing plan in 1937. He wanted to increase the number to 15 and his critics said, you only want to do that because you're not winning among the nine who are there. And you're just trying to pack the court to, to get a bunch of new justices who will agree with your position. So, congress actually rejected Roosevelt's plan. But the rejection that plan did not create some unwritten constitutional principle that it has to be nine, because the text pretty clearly says Congress gets to decide the size, and Congress hasn't chosen to exercise that power, but mere non-use of the power doesn't mean that somehow the text is amended. The text still gives Congress this power. It hasn't used it in the last You know, 70 years but, it perhaps could in the future, just like there were periods of time where Congress never passed a civil rights law, large, you know, half a century, but it didn't thereby lose its power to pass a later civil rights law or voting rights law. So where the text is pretty clear, and I think on the Supreme Court, the text is pretty clear, the Congress actually does get to By statute determine the size. And it has done that over time. Remember as few as five. As many as ten. Maybe it has to do, to change the size for a kind of a good government reason perhaps. Rather than for, for some mere partisan advantage. Maybe not. That's kind of a, a, a debateable realm. What, what reasons might congress have for changing or modifying. Or manipulating the size of the court. But I think there's pretty widespread agreement that, if congress had a good government reason for modifying the size of the supreme court, it could do so because the written constitution's pretty clear, and the unwritten constitution merely says it hasn't done so recently but it did earlier in American history. Okay. So how about the rule the, the the internal voting rules within the House, the Senate, the Judiciary? Government entities, you know, we've been talking about how government is constituted, how these organs of power actually operate. That's the kind of Constitutional law we're, we're examining right now. How the government is constituted. Some a government entity it can't do anything at all with the kind of sort of voting rules determining what counts as a decision for or against a certain proposition. And here's the kick in the head. The constitution doesn't explicitly specify these internal voting rules. They're often implicit, they're part of an unwritten constitution. So the supreme court's now nine. Where does it say that if its five to four the five win? It doesn't say so in so many words but that's been clear from the beginning that majority rule is just presupposed and the House of Representatives has always used. Majority rule that actually the Senate did early on. And that's because the framers believed that majority rule was just the the basic baseline and premise of a system. It's the, the natural law of every assembly, unless. It's otherwise specified said Jefferson, said Franklin, thought all the founders. And so you might say, wait a minute professor, what about this filibuster, thing that I've heard about. So, let's actually talk about the filibuster. Let's use actually the framework we've developed to think about the filibuster, because there's some folks today. That think that Senate actually can't do anything unless 60 Senators out of 100 say so and that the Senate can't even change that filibuster rule unless 60 or more Senators vote to change the filibuster rule, kind of a catch 22, actually, that it requires 60 votes to pass all sorts of bills according to a certain Senate rule. Senate Rule 22 and according to some you know, you can't really change Senate Rule 22 without a 60 vote super majority and if so, Rule 22 would be catch 22. and, an intention with the deep majority principles that every other institution abides by. So let's, let's take a step back and look at Senate rule 22, the filibuster rule. Using the framework we've de, been developing. So, let's first think about the implicit constitution. Now the constitution says pretty clearly that when a president vetoes a bill, 2 3rds of the house and two-thirds of the senate suffice to override the veto. So obviously Something less than 2 3rds, should be required to, to pass an ordinary bill, and, and by tradition and principle, I'll give you some more reasons. That something less is, simple majority rule. Well let me put it another way. If Senate Rule 22 can entrench A 60 vote rule, why couldn't it entrench a 70 vote rule, or an 80 vote rule? But those rules would clearly be inconsistent with the clear text of the Veto Clause, that says 2 3rds is enough to override. You can't have an entrenched 70 vote rule. You can't have an entrenched 80 vote rule. And, and maybe actually they have the idea you can't have any entrenched rule other than majority rule. The Constitution presupposes majority rule. So it take, the reason that constitutional amendment requires 2 3rds is that constitutional amendment should be harder than ordinary statutes. The reason that the constitution specifies a super majority rule to expel a member of congress is the baseline. Is majority rule. Wherever the constitution, all these specific voting rules in the constitution exist against an implicit baseline. Where, where nothing is specified, majority rule is the premise. Now let's look at America's enacted constitution. Remember how does the constituion come about? By state ratifying conventions. How did those state ratifying conventions vote for the Constitution? By simple majority rule. In New York, it was 30 to 27. And everyone understood when that vote was taken that 30 beat the 27, and everyone understood that even though the text doesn't say that at all. You won't find that in article seven, you won't find that in the preamble. But, everyone understood that majority rule is the basic rule of all branches of, of, of government, unless there's something specified to the contrary, okay, so. Remember, early chapters we looked at implicit constitution, chapter one the inactive constitution, chapter two, America's lived constitution, how ordinary do people live their lives, but you're members of all sorts of clubs, and ordinarily in clubs, and stamp clubs and chess clubs and, and PTAs and all the rest. Unless you have your by-laws specify otherwise majority rule is the basic principle. Not what about America's doctrinal constitution. What does case law say? Actually case law says majority rule. A very important supreme case called United States versus Ballin proclaimed this is a quote, the general rule of all parliamentary bodies is that where a quorum is present the act of the majority of the quorum is the act of the body. This has been the rule for all time. Except so far, as in any given case, the terms of the organic act, under which the body is assembled, have prescribed specific limitations. No such limitation is found in the federal constitution, and therefore the general law of such bodies obtains. Unless the constitution specifies otherwise, it's majority rule, says the Supreme Court. America's symbolic constitution, well some of our greatest icons of a of, of, of America like the voting rights act. You know, they were passed really despite the filibuster. The filibuster was actually used against some of these things and Now, remember we were talking about Americas institutional constitution and. Here's where history comes in. The first Senate, acted by majority rule. The very first Senate, remember they have kind of jump starting question a little like what happened in Congress in the 1860s during the civil war. By what rule is the first Senate going to organize itself and pass rules of procedure? You know, by what rules is it going to decide what the rules of procedure are? and, it decided by majority rule. And what's true for the first Senate is true for all other Senates. And in fact, prior to the Civil War, there was no, important measure where a mino, minority actually ever sort of thwarted the majority from expressing its, its will. No example of anything like today's filibuster for the entire period before the Civil War. And you know this actually. You may not know you know it, but you do because you took American history in high school. And you remember, for example, the compromise of 1850. Oh what a big deal that was, and it was a big deal because California came in to the union as a free state. Without an offsetting slave-state. And now, for the first time, the free states have a, just a bare simple majority in the Senate. And that was a big deal, precisely because bare majorities actually governed in the Senate for the entire Antebellum Period. Or I can put it another way. If there's some example of the filibuster before the Civil War of any important sort. Name it. You know, I've, I've never heard of, of, of one and you haven't either and even rule 22, which is a very, a much later development, when you read it carefully, it doesn't say that it can't be repealed by simple majority rule. It actually says the debate on it can't end on it until you get to 60. And and so here's actually what's called the nuclear option. Republicans used to support it When they come ba, now Dem, some Democrats are pushing it. And when the Republicans come back in power they, they in the Senate, they may push it again. It's also called the Constitutional Option. And what it says is, by simple majority vote, if the majority's very determined it basically can get rid it can end debate on filibuster reform after everyone has been heard. You have to let everyone, sort of say their piece. But after everyone has genuinely been heard. A simple majority of the Senate can get rid of Rule 22 because the constitution itself guarantees their right to do so and Rule 22 in fact, carefully read, doesn't purport to say otherwise. That's the so called nuclear option or constitutional option and it shows. The great power of the, the framework we've been developing here. By paying attention to the tools and techniques of America's implicit constitution and America's inactive constitution and America's doctrinal constitution. We can actually and, paying attention to actual institutional practice we come up with a very arresting conclusion very significant that any day, not just the first day of the Senate. The Senate is a continuing body. Every day is the same as every other day. The House of Representatives comes to life, springs to life, a new one, every two years. It's not a continuous, continuing body. But the Senate is. Every day is like the day before, they can, they can follow the rules that they've inherited from the day before, but every day by simple majority vote if they're determining every, any day. They can change those rules. Now they shouldn't do so, only deliberately and letting people actually speak out if they have an objection, but once everyone has been heard, we vote. Minorities get to speak. And majorities get to vote and rule. That's the basic thought. and, so stay tuned. You're going to hear more about filibuster reform in the years ahead. I'm going to conclude now. With four case studies, that illustrate this general proposition. Here's the general proposition. Where the constitution is clear Various innovations that run counter to it basically don't survive in the long run, they fail. You know, they're all sorts of interesting ideas that people have, and sometimes they're good and sometimes they're bad, if these innovations and ideas basically can fit within the, the, the broad contours of the text. If the text can be read to accommodate them the, the, the, these new the, these adaptations survive. But if they go beyond. If they, if they break the text, they basically actually fail in the long run. So in the long run actually, America's written and unwritten constitution fit together. I'll give you four examples of kind of new ideas, two of which basically, weren't in sync with the constitution and failed. Two of which were clever adaptations that. Could be read to align with the written constitution. And they suceeded. So here's one failure. It's called a legislative veto. And here's how it worked. Congress would pass a law at time T1 and the law might say something like, you know, if you do A, B, and C you get some special benefit, X. Some tax credit or something. Unless, one house of congress decides otherwise, later on at time T2, and then you don't get x. So if either house of congress or both houses of congress acted together on something, or without the Presidents signature, or some committee later vetoes the benefit, you don't get the benefit. That's called a legislative veto. And when, and it was when in a whole bunch of statutes beginning in the, in the 20th century, and when that issue reached the Supreme Court, the Supreme Court laughed it out of court, and rightly so because it's kind of constitutionally preposterous even though the label, legislative veto, no the veto is for the presidency, and legislatures are supposed to legislate but they're not supposed to do, through, so, with a thing called a veto, two simple, logical proofs. What are you doing at, at time T2, when you purport to veto this thing. Either you're saying, well actually, this person didn't really meet criteria a, b, and c, so he's not eligible for benefit x. If that's what you're doing, that's not legislating, that's adjudicating and judging. That's determining whether factual conditions A, B, and C actually exist. That's for the executive to do in the first instance, and, if someone's dissatisfied, for a judge to decide afterwards. That's applying your earlier law to the facts. Well your saying, this person doesn't deserve x, because they don't really qualify for the earlier standard, A, B and C, that we laid down. Not your call legislature. That's up to executives in the first instance and judges who apply law to facts. Okay. Alternatively you could say oh that's not what we're doing. We just decided that A, B and C shouldn't be the standard. It should be D, E, and F. Fine, then pass a new law. But that law would require bicameralism and presentment to the Presidency. So. The two formal proofs, first, you know. If what you're doing in this legislative veto is actually deciding that the person didn't, wasn't eligible, that's not legislation and you cant do it, that's adjudication. And outside of a few special occasions like impeachment. Judging the qualification of your own members. You and Congress are not supposed to be judges. You're supposed to be law makers. Alternatively your'e saying the person didn't really you know we want to change the standards. And if you're trying to change the standards pass a new law. Put differently, that's one proof. Here's a different proof, but either way it's unconstitutional. Here's a differnet proof. What is the legislative veto? It's got to be either executive, legislative, or judicial, those are the only three powers in the constitution, and the tenth amendment says there are no other powers. If its legislative, it requires both houses by cameralism and presentment to the president. The president gets to veto it or not. So if its legislative, you're not doing it the right way. If it's executive or judicial, generally you in congress don't have that power. Outside impeachment and these few other exemptions. So when it reached the court, the court laughed it out of of court, the Supreme Court did. Presidents throughout the 20th century, every single one of them basically said the legislative veto was unconstitutional. It doesn't go back to the George Washington era, to the founding era, so this was an adaptation, an innovation an invention And it failed because it doesn't really fit the constitution's basic separation of power structure. How bout the Independent Counsels, Ken Starr and others that we had post-Watergate. Well we need to deal with executive law breaking, but the independent counsel model didn't quite work because judges were picking prosecutors. And that's. Just not how our system is designed to operate. And how could the independent counsel be genuinely independent, and also inferior because judges can only appoint inferior officers, inferior basically meant inferior to judges, magistrates, bailiffs, court clerks. It didn't mean, you know, picking people who can prosecute or investigate the president himself. so, so the independent council statute was well-intentioned. But it really didn't fit the basic constitutional structure. It gave non judicial, improper non judicial powers to judges it, it, it, it created someone who was supposed to be simultaneously independent and inferior. Which is a weird thing, just like legislative veto is a contradiction terms inferior and independent, that's that's a weird combination, and the system basically failed and it failed because presidents came to recognize that the system was a constitutional monstrosity. And they refused to reauthorize it. The legislative veto statute was just a temporary experiment, it lapsed every few years and after a certain point president said we're not going to support this, and these were Republican presidents as well as Democrat presidents who eventually came to that position. Bill Clinton alongside George HW Bush for example. Just as presidents of all stripes, republican and democratic, had come to see the legislative veto was unconstitutional. So those things went beyond the text of the constitution, and they failed. I'll give you two clever innovations, adaptations, that are within the text of the constitution, and, and have survived. One that is really weird this is called a Saxbe fix. In a nut shell, here is what the Saxbe fix is. There's the provision of the constitution that says, if you're a senator or a representative, you are not eligible to serve in some executive or judicial position whose salary has increased while you the senate of the house. Okay? So the idea is you can't pump up the salaries of these existing positions and then basically take the, the inflated salary position as kind of an anti-bribery, anti-corruption idea. You don't want to let the president give you some sinecure, some cushy job and, to reward you for going along with president's program elsewhere or something. Okay. But what about, So these cost of living increases, that we have for cabinet officers, or something. What if you say fine The salary was increased, but I won't take the increase. I'll just take the earlier salary. And that sort of fits the spirit of the provision or it shouldn't be forever ineligible just because we have cost of living increase on my watch. As long as they take the lower salary haven't I really complied with the spirit of the provision. And a thing called the Saxebe Fix is a way of taking the position without the salary increase. And it's been done with the blessing of Republican as well as Democrat congresses and Republican as well as Democrat Presidents. It's the provision, it's the little wrinkle under which Hilary Clinton left the Senate and became Secretary of State because Secretary of State, the salary actually increased on her watch but she didn't take the increase. Ken Salazar, that was true of, but it's, it's been true. Republican presidents have also used the Saxbe Fix going all the way back to, to Ulysses S Grant, and, and Taft, and and others. And, and so, so that's an adaptation that doesn't really violate the, the, the letter and spirit of the Constition, which have some ambiguities in them, and Give you one final example. Independent agencies. Independent agencies, are basically picked by the president that the members of them but they can't be fired at will. Like the head of the fed, or the other members of the federal reserve system, for example. That is a deep part of our constitutional system. How the consti-, gu-, the government has actually constituted. But it doesn't run afoul of the, the rules. Speci-, presidents are picking these people. Presidents are are the ones who remove them. They don't get to remove them at will, but only for cause. But the constitution doesn't say, have elaborate rules on, on, on removal. It has rules on appointment and to repeat, Presidents appoint all these people. There have been times when Congress has tried to pass statutes vesting appointment powers in Congress itself, and the Supreme Court has laughed those laws out of court. Because that does violate the written Constitution for the House or the Senate or some leaders thereof to appoint government officials. But as long as the President's doing the appointing. And the president's doing the firing whether the firing is for cause or or more generally at will. The Constitution permits both of these systems. Here's one final way of putting the point. Independent agencies have been around for a very long time. Presidents of all parties have supported them. They didn't support the legislative veto. They didn't support the independent counsel. But the have supported the Saxbe Fix and independent agencies. So the basic idea, in a nutshell, and here I'm going to conclude and I'll, with one, final thought about this fellow over here. Where the written constitution is ambiguous, and these informal adaptations kind of fit can be, can be read to simply clarify an ambiguity or fill a gap in the constitution. And where all branches of government have pretty much agreed, and especially where something goes all the way back to the founding this practice, then it's pretty easy. But, when these innovations really are inconsistent with clearly the letter and spirit of the constitution, and they don't have deep constitutional roots all the way to the founding, and they haven't been embraced by both parties and all branches of government, then actually they don't survive. America's writen, unwritten constitution fit together to form a single system. America's unwritten Constitution lives in its written Constitution, and its written Constitution lives in its unwritten Constitution. Now who's this fellow? He's the last recess appointment to the U.S. Supreme Court. President Eisenhower appointed Potter Stewart during a Senate recess to the Supreme Court. And since then, presidents have appointed judges to lower federal courts, but not to the Supreme Court. But Potter Stewart is one of a long line. Of recess appointees who, who proves that even for the judiciary, you can have this, and the text is ambiguous on this. And I confess I wanted to share with you this picture in particular. This was he was appointed to the court in the late' 50s by President Eisenhower, but I wanted to share this with you because this is a Yale MOOC, a Yale Massive Open Online Course. I went to Yale, I, I teach at Yale and I went to Yale College. And Yale Law School, and Potter Stewart went to Yale College and Yale Law School, so it's my little way of just reminding you that this is a Yale MOOC. I hope you've been enjoying it so far. We're not done yet, so stay tuned. [MUSIC]
