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- [Instructor] Hey, this is Kim from Khan Academy, and today I'm learning about Article I of the U.S. Constitution. Article I is jam packed with information about how our government is supposed to work, but principally what it does is create the Legislative Branch of government, which includes the House of Representatives, and the Senate, which together, comprise the Congress of the United States. Article I also tells us how people can get elected to those bodies, and what powers Congress has. To learn more about Article I, I talked to two Constitutional experts. Ilya Somin is a professor of law at the Antonin Scalia Law School at George Mason University, whose research focuses on Constitutional law, property law, and the study of popular political participation. Professor Heather Gerken is the Dean of Yale Law School. She's a leading expert on Constitution law and election law, and her research focuses on Federalism, diversity, and dissent. - [Dean Gerken] Article I gives an enormous amount of power to the legislative branch, otherwise known as Congress, and it was designed specifically to overcome some of the problems that they'd seen under the Articles of Confederation. - [Professor Somin] The legislative power under the Articles of Confederation was pretty weak, in part because the Congress under the Confederate articles didn't have the authority to directly tax the states. They also lacked a lot of other powers that were eventually given to Congress under the Constitution. - [Dean Gerken] These were the things that really mattered if you're building a young nation. You need to be able to do certain things in order to protect it, especially at that time, when there were many, many other countries that were circling around wanting to grab the land and power. And so the United States needed to defend itself in those early days. - [Kim] Okay, so we all know today that our Legislative Branch is made up of the Senate and the House of Representatives. But it didn't have to be that way, so why was it that the framers settled on this two house structure for the Legislative Branch? - [Professor Somin] I think for several reasons. One is that it was a compromise between the small states and the large states. The large states, ones that have a lot of population, wanted representation in Congress in accordance with population, obviously then the large states would get more representatives. The small states, on the other hand, were concerned that they would be dominated by the large states if that happened, so in the end, the compromise is you have one house, the House of Representatives, which is largely apportioned based on population, and one house, the Senate, which is apportioned based on each state having two votes, no matter how small or how large it is. A second reason why you end up with this structure is the influence of the British example. The British had both the House of Commons and the House of Lords. And the House of Commons, of course, being more subject to popular pressure, while the House of Lords were this elite aristocracy. And the founders also wanted a combination of popular and elite power. And it was thought that the Senate would fill that elite role, in part, because initially the senators were chosen by state legislatures, rather than by the voters directly. - [Dean Gerken] So the House of Representatives, which is based on districts, is supposed to represent you based on where you live, and the Senate, which is based on states, is supposed to allow, at that time, the state legislature to nominate two luminaries from the state to represent the state. - [Kim] So yeah, for a long time, the senators were actually appointed. Now they're elected. - [Dean Gerken] Senators were appointed until the passage of the 17th Amendment, which amended Article I, and that gave state legislatures a fair amount of influence over who went to the national government. - [Professor Somin] But it is also true that many states by that time already effectively had popular election of senators. - [Kim] Really interesting. Okay, so you described the Senate as being kind of the American version of the House of Lords, a little bit more elite, a little less subject to popular opinion. How does that carry over into the Senate that we have today? How are its powers different from the House of Representatives? - [Professor Somin] It does have certainly different powers from the House in some respects. For example, it has the power to ratify treaties and to confirm appointment to the the Court and to the president's cabinet, so earlier this year when Neil Gorsuch was appointed to the Supreme Court, he had to be confirmed by the Senate. Obviously today, the Senators are elected just like members of the House are, and I think they're every bit as partisan and almost as sensitive to public opinion as members of the House of Representatives, so the difference between the Senate and the House in that regard, maybe it hasn't completely disappeared, but it's certainly greatly diminished. - [Kim] Okay so there are certain powers that are reserved to the Senate. Are there particular powers that are reserved to the House of Representatives? - [Dean Gerken] The House is important. Don't underestimate the importance of the House. I'll just say the House of Representatives, for example, is allowed to initiate impeachment proceedings against the president. - [Professor Somin] If the House votes in favor of impeachment, then the Senate holds a trial to determine whether the official in question gets convicted or not. - [Dean Gerken] As a general matter, though, they're roughly co-equal. For the big, important things, like passing legislation, you need both of them to work together. - [Kim] So together these two houses make up Congress. So how is Congress different from the Executive Branch or the Judicial Branch? What are its powers? - [Dean Gerken] The way that the framers understood it was that each one would have their own job. So the judiciary, obviously, was there to judge disputes between people, to run the court system, et cetera. The executive was there to carry out the laws. And so the executive's job is to administer the law once it has been made. And of course the legislature is there to legislate. So its main job was to make the law. And at the time, I will just tell you, everyone thought that the big gorilla in the room was Congress, that it would be by far the most powerful organization. The framers simply did not anticipate how powerful both the judiciary and the president would become over time. - [Kim] So what happens if, for example, the Congress and the president don't get along? - [Professor Somin] Well, it happens quite a lot. The president could refuse to accept laws passed by Congress, he could veto them. In that event, Congress can only override it if two-thirds of both the House and the Senate voted to do so. Congress, on the other hand, can pressure the president in various ways. They can hold hearings investigating his conduct on various issues. They can de-fund agencies of the Executive Branch whose job performance they don't like. They can refuse to confirm the president's appointees to various offices, and in extreme cases, that have happened a couple of times in our history, Congress can even impeach the president, and if he gets convicted in the Senate, then he would be removed from office. This is what led to the resignation of Richard Nixon. The House of Representatives impeached him, and Nixon resigned before he could be tried in the Senate. President Andrew Johnson and President Bill Clinton were also both impeached, and in both cases, the Senate ultimately acquitted them, but it was still a very painful time for both of those presidents. - [Kim] So speaking of antagonistic relationships, I think one thing that's really come to dominate Congress is partisanship. To what extent did the Constitution anticipate this rise of parties and partisanship? - [Professor Somin] They actually knew about parties to some degree from their British experience, but they were very suspicious of them, and they hoped and perhaps expected that they wouldn't emerge in America to anything like the same extent that they had in Britain. But in actual fact, a few years after the adoption of the Constitution, we already had the first party system, the Federalists and the Democratic Republicans, and partisan alignments have played a big role in Congress ever since then. - [Dean Gerken] So even back then there were rival interpretations of how the Constitution should be carried out, and what kind of power the national government should wield. But they somehow thought, naively, I think, that the parties would disappear and that people would have allegiances to their state or to their region, but they wouldn't have allegiance to a party. That broke down completely almost immediately after the Constitution was written. That leads to a real problem these days, because most modern Constitutions recognize that there will be two parties, that they will be in competition with one another, and that part of the job of the Constitution is to regulate that competition. - [Professor Somin] Would the founders have done anything differently if they had known about parties and expected that they would play such a big role? It's hard to know for sure, but maybe they would have been less confident than some of them were that Congress would always stand up for its prerogatives against the president when the president and Congress are of the same party. I think often Congress is inclined to overlook various presidential abuses. - [Kim] If the reverse is true, things might be very difficult to do. - [Dean Gerken] Exactly. I mean the whole point about them needing one another to act is really a problem if one side is antagonistic to the other side. - [Kim] One other thing we see here in Article I, is talking about kind of what the Federal government does versus what the states do. So this is kind of the idea of Federalism, then. Could you tell us a little bit more, just about what Federalism is and how it's supposed to work? - [Dean Gerken] So the way that we understand Federalism back then, was that there was a division of labor. The states would regulate things that were inside their territories, and accorded to them in terms of responsibility, and the Federal government would regulate everything that was accorded to it under the Constitution. The problem is, as Congress' power became more and more expansive, it ended up regulating the same areas that the states regulate. - [Kim] So if the Federal government and the states have a law on the same topic, who wins? - [Dean Gerken] As long as it's passed properly by the Federal government, then the Federal government wins. So if there's a Federal law and the state law is inconsistent with it, the state law is displaced. - [Kim] Is there anything that might surprise the framers about how our Congress operates today? - [Professor Somin] When the framers created Article I and drafted it, they certainly expected that Congress would have more power under the Constitution than it did under the Articles of Confederation, but I don't think very many of them would have believed that Congress would ever be able to do things like forbid the growth of medical marijuana in your backyard, or regulate what kind of toilet you're allowed to have in your house, or for that matter, do something like the war on drugs, which forbids the possession of drugs throughout the country, and the like. Originally the power to regulate interstate commerce, which is the authority under which most of these things are done, it was at the time conceived of as a power for Congress to break down trade barriers between states and perhaps regulate the actual shipment or trading goods and services across state lines. It was not until the 20th century, particularly after the New Deal, that Congress was able to start using this as a power to regulate nearly every aspect of human life that might in some respect affect the national economy. So that, I think, is a huge change. - [Dean Gerken] I think what would really surprise the framers is how willing Congress has been to give up its own power. So Congress has given the president a lot of power, because it's created administrative agencies with vaguely defined mandates that therefore allow the president to use his entire administrative agency apparatus to pursue his goals. - [Kim] So we've learned that Article I of the Constitution establishes the Legislative Branch of the U.S. government, which is made up of the Senate and the House of Representatives. These two bodies were created to balance popular power with elite power, since members of the House of Representatives were directly elected by the people, whereas senators were appointed by state legislatures. Although one major change is that senators are now elected as well, what might really surprise the framers about Congress today is how its power has evolved over time. On one hand, as Heather Gerken mentioned, the powers of the president and the Supreme Court have grown compared to the powers of Congress, but on the other hand, as Ilya Somin points out, the framers might be surprised at just how much of our lives Congress can regulate today. To learn more about Article I, visit the National Constitution Center's interactive Constitution, and Khan Academy's resources on U.S. government and politics.