NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the role of the legislature. Today’s episode features Professor Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University. Professor Whittington is widely regarded as one of the preeminent scholars on the American Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: What experiences did the Founders consider when drafting Article I of the Constitution? What were their primary concerns about a federal legislature? KEITH WHITTINGTON: So the framers have some experience with legislatures, both with what parliament did, but also what colonial legislatures did and what state legislatures did and so they knew that the new Congress should exercise a lot of the same kinds of basic powers. So they expected Congress to be able to raise taxes. They expected Congress to make fundamental decisions about spending. They expected Congress be able to make important policy decisions about setting legal mandates for the people and how they'd be able to govern. They had less of a well worked out idea about what kind of oversight Congress would do of the executive branch. They anticipated some aspects of oversight and certainly in the most extreme case of impeachment as an ability to remove executive branch officers who are engaging in misconduct but the kind of detailed legislative oversight that we see now of how the executive branch operates was not terribly familiar to them as a way that a legislature would naturally behave. Well, certainly part of what the framers in Philadelphia were thinking about is how the state governments had worked after the American revolution and those state constitutions….so one thing Madison was very concerned about is how do you make constitutions more effective so you can actually enforce limitations and not just write down what he characterizes as parchment barriers. The other thing about those state constitutions is they weighted the balance of power in those state systems very heavily toward the legislature. So they created very weak courts and very weak governors for the most part, in part because the drafters of those state constitutions during the American revolution were very distrustful of courts and the executive branch. They wanted very powerful legislatures and by the time of the Philadelphia convention, the Federalists had really decided that those state legislatures were too powerful, that the courts and the governors didn't have enough of a capacity to push back against legislatures and that was bad both in the sense that they couldn't prevent the legislature from abusing power on its own, but also they couldn't stand up to legislatures when legislature started stealing powers away from the executive and the judiciary. And so when Madison, others looked at what the state experience had been like in the first decade after the American revolution, part of what he saw was very grasping legislatures that were willing to take over executive powers and really even take over judicial powers and push aside the other branches of government and so part of what Madison's concerned about is how do you keep legislatures not only from using the rights of citizens by doing things that even you've specifically written in the constitution they shouldn't do, but also how do you keep them from running over the top of courts and executive branch officials and really trying to do their jobs as well as do the core job that you're assigning to the legislature. So each of the first three articles of the US constitution describes a different branch of governments. So Article one describes the Congress, the legislative branch. Article two describes the executive and Article three describes the judiciary and each starts the same way, that each starts with a vesting clause that vest the powers of that branch of government and that set of government officials and so article one begins by vesting legislative power in the legislature of the new legislature being created by Article one the Congress, but Article one's vesting clause looks a little different than the vesting clause of Article two and Article three because it doesn't vest all legislate power in Congress, it vests the legislate power that's herein granted to Congress because elsewhere in Article one, the founders actually specify exactly what let's say a powers Congress is supposed to exercise. And so they're not trying to give all the legislative power that exists in the United States or even in federal government necessarily to Congress. They're trying to give them very specific powers and this is partially a concern with federalism. How do you create a system in which Congress is going to have some legislative tasks to perform but also the state governments how are they going to have legislative tasks to perform and that effort to a set of powers the Congress is going to exercise is an effort to try to find that balance between what you expect Congress to do going forward and what you expect state legislatures to do going forward. PUBLIUS: What about the experience that the Founders had with Parliament? Did that also contribute in any way to how they conceived of a new American legislature? KEITH WHITTINGTON: They're British writers who are trying to think about what kinds of powers parliament ought to be exercising and they've created a category of things that they think of as legislative powers in particular, but all that still fluid and there's still debates both in Europe and in the United States over what the full scope of those legislative powers are, what exactly falls in that category of legislative powers and some of the powers that are explicitly vested in Congress, we might not think of as being very nationally legislative in their natures of, for example, the taxing authority is not the same as the power to make law in general. It's a power that parliament claimed, a power that we increasingly thought belonged with the legislature, but it's not necessarily naturally a legislative power as such. One thing at very beginning of Article one does take account of is the fact that there's going to be two chambers of Congress. So Article one in vesting legislative power vested in a Congress and then specifies that the Congress consists of both a Senate and a House representatives. The rest of Article one then goes on to detail what those two chambers look like, but again, this is partially an English inheritance that the parliament was a two chamber body. The framers were familiar with two chamber body. A lot of the colonial legislatures had two chambers as well and so they were building that into the Congress also and that gets referenced right up front that that's both those chambers are going to be part of the single national legislature. It's not just the house representatives for example. This is the true legislature and we might think of the Senate as being an advisory body to the executive branch for example, instead the Senate is understood to be a full fledged member of the legislative branch itself. So the framers have a set of expectations about what a legislature is likely to do and what the legislative power looks like in practice and at the very heart of that idea about what the legislative power is, is the ability to make broad policy this general. So what has emerged out of England, what develops in Montesquieu's writings and the writings of other political philosophers at the time is they think of the executive and judicial power is about applying general rules to specific individuals and bringing force to bear to make sure those rules are actually implemented. What's distinctive about the legislative power is it's not thinking about specific individuals, it's not thinking about how policy is going be applied on the ground. It's trying to think about what are the general rules that ought to guide society more generally and so the concern of the legislature is trying to develop those general rules. They're not just about specific individuals or specific situations, but are trying to provide general guidelines to regulate society more broadly. In addition, there's a set of powers they also think fall within the scope of what legislatures ought to be concerned with, including the power of the purse and the ability to control money, both raising money for the government but also spending money. There's an expectation that the legislature will do some oversight of the executive branch in order to see how laws are being played out, but also provide a check on the executive branch. They don't have very well worked out views about what that oversight looks like, but we see an example of a part of what they're thinking about in the impeachment power, which they entrust in Congress the ability to remove executive branch officials that they think are engaging in misconduct in an extreme way, which presumes that the legislature is going to be a body that in part is going to be watching over other branches of government on behalf of the people that the legislature and put them in place in the first place. PUBLIUS: You mentioned how the idea for two “chambers” in the legislature came from the British experience. Can you elaborate on why the Founders thought that was so important? Did they craft different roles for the House of Representatives and the Senate? KEITH WHITTINGTON: Right, so partially the framers in drafting the constitution and drafting Article one is vesting legislative power in Congress broadly, but they're also singling out a few powers and trusting them specifically to single chambers of Congress and particularly the Senate and so, one way in which they were familiar with upper chambers operating in the colonial period and the early state legislatures was there might be an upper chamber legislature that was really an advisory body to the governor and exercise some checks on the governor, but also advise the governor on making policy of various sorts and some of those kind of traditional functions were entrusted specifically to the Senate and part of the goal there was provide a kind of check on the new president. So take powers that might've existed only in the hands of the King in the context of England instead require that they be shared between the president and the Senate. So the president was not as powerful as a King might be. So, for example, the treaty making power is a power that's shared between the Senate and the president. It's not strictly a legislative power per se. It's not a law making power. It's not a congressional power. It's a power that's entrusted specifically to the Senate in cooperation with the president of the United States. Likewise, the sentence given a role in confirming appointees that the president might make both to judicial offices and also to executive branch offices where the president can't sometimes make appointments on his own, the Senate has to cooperate with that but again that's not specifically legislative function. It's an additional function that the framers and trusted to the Senate specifically. And then also the Senate singled out and being the place where all impeachments will be tried and again, that's not a specifically legislative function. It's a specialized function, really more of a judicial function that the Senate is serving in that context, but the framers need to vest it somewhere and the Senate seemed like the best place to give that kind of elevated additional power to help check other branches of government. PUBLIUS: Does the Constitution deliberately make it difficult for the Senate to exercise power? Can you give a brief explanation about how and when a supermajority is required? What purpose does the filibuster serve? KEITH WHITTINGTON: So the constitution, unlike the Articles of Confederation, mostly works on a majoritarian basis. So one of the problematic features of the Articles of Confederation on the first federal constitution was it often required supermajorities in order to get anything done. So all the important decisions that the Congress was making under the Articles of Confederation could not be done on a majority basis. They really required supermajorities, which often meant they were very hard to do. So in designing the Congress, the framers really shifted toward a more majoritarian kind of body so it would be easier to make policy in general and so there were very few exceptions where they wanted to carve out an additional supermajority role. Most notably, in order to ratify treaties, there was going to be a supermajority requirement in the Senate. So you couldn't simply do it with a simple majority, but you needed more than that and likewise to potentially override presidential vetoes for legislation. So again, there's an effort to try to balance the president versus Congress. They wanted to give the president ability to check Congress and to some degree by giving him a veto power but they also decided they didn't want that to be an absolute veto power. They want to be qualified. So there was an ability to override and of course then if you're going to have an ability override, you need something other than supermajority to pass the law in the first place and so it's a place where there's a super majority requirement in that context is as well, but otherwise generally the drafters really preferred as often as possible to create supermajority for how Congress operates. In one place where we tend to think of there being a kind of supermajority requirement built into the way our system actually works is in the context of the Senate filibuster is notable that Senate filibusters are not built into the constitutional text itself, but are rather a function of the internal rules of the Senate and the Senate has changed those rules over time as to how many votes does it take to stop a filibuster and move on with legislative business and over time the Senate has actually tended to reduce how big that majority needed to be. So the earlier in American history required a very large majority, now it only requires 60 votes in order to overcome a filibuster. The Senate is now tending to shrink the scope of how many things can be subject to a filibuster so that fewer and fewer things are actually subject to the possibility of a filibuster but that's one instance in which the Senate has internally constructed a kind of super majority rule for lots of important policy decisions, but one that the constitution itself doesn't actually require, but we've regarded it as a very basic feature for a very long time of how the system actually works as a kind of protection for minority interests within the congressional process but one that we've been chipping away at over time. PUBLIUS: Earlier you mentioned impeachment as a power entrusted to the Senate. Doesn’t the House of Representatives have a role in that process also? How does it work? Why did the Founders design it this way? KEITH WHITTINGTON: So notably the impeachment power is not naturally a kind of legislative power. It's a special power being given to Congress and it's being given to the two chambers of the Congress in order deal with the possibility there might be misconduct that occurs in other parts of the government and you need some kind of tool built into the government to address misconduct when it might arise and so the way the framework is constructed that is to charge each chamber of Congress with a somewhat different responsibility relative to that kind of misconduct. It charged the House with the responsibility of being able to pursue an impeachment in the first place, which means it's charged the House with the ability to investigate possibilities of misconduct and come to some conclusions about whether or not they think misconduct has occurred. The constitution doesn't specify the details or what that kind of investigation might look like. It's simply says that the House has the power to impeach and so it leaves the details of the process to the house itself to make a determination as to how to proceed and you can imagine some circumstances in which the House goes into quite lengthy and detailed investigations in order to try to get the bottom of some accusations of misconduct and you can imagine other circumstances in which the misconduct is evident to everybody in the minimal kind of effort needs to take place in order to investigate. The Senate on the other hand is charged with hearing those charges and ultimately making a more judicial like ruling as to whether or not somebody is actually guilty of those charges and so then we might conceptualize the House as serving the role of something like a prosecutor who brings the charges to the Senate and then the Senate serves a role more like a set of judges who are trying to evaluate whether or not the evidence and the law actually results in demonstrating that somebody is engaged in a kind of misconduct. Senators are expected in that context to not be acting at a purely partisan motives. They're not expected to be acting out purely political motives. The goal is they're supposed to be thinking about what kinds of misconduct has been charged about somebody, what's the evidence at hand about whether or not they're actually guilty of those charges and then they're ultimately rendering a verdict on that and they're not just simply declaring we think somebody ought to be removed from office. They're declaring that somebody is actually guilty of having committed specific impeachable offenses. It's also true though, on the other hand, despite the fact that that is a quasi judicial process, senators take an oath to treat the defendant fairly in this context. They follow rules of procedure in this process to hear certain rules of evidence and collect testimony in the context of the trial, but the Senate is limited as to what kind of penalties they can impose on the backside of the impeachment process. So they have the capacity to judge somebody guilty, but they then do not have a full arsenal of different kinds of consequences they can impose on a guilty party at that point. All they can do is remove somebody from office or perhaps take the additional step of disqualifying them from future office but they cannot impose any additional criminal penalties on somebody even if the Senate thinks that the impeached individual is in fact guilty of criminal offenses. Those criminal charges have to be separately pursued in the ordinary courts, through the ordinary criminal process and ordinary criminal punishment would be imposed in that context. It's something that occurs outside the context of impeachment. PUBLIUS: In the beginning of the podcast, you discussed how the British experience shaped the Founders ideas about the legislature. What about these impeachment powers? Was the process similar in the Parliamentary system? KEITH WHITTINGTON: They're familiar with an impeachment power that parliament had exercised before. So they were familiar with such a practice but what partially motivates them to want to include that in the constitution was the creation of an infinite president where they're worried that a very powerful officer with a fairly lengthy term, something could go wrong until before the next election. So you might need some kind of mechanism to be able to remove an officer under those circumstances before the next election might occur and once they start thinking in those terms, then they start thinking, well with that ought to be true for all kinds of officers in the federal government, including executive branch officials, but also including judges should be subject to the same kind of rule. They then model the impeachment power off of parliamentary practice, although they do make some significant modifications in it as well and trying to import it into the American system and the impeachment power as it's embedded in the constitution, really has two core components. One primarily procedural and the other primarily substantive. The procedural component is that the US House of Representatives has the impeachment power and so by a simple majority vote, it can impeach an officer, which we might think of as being like a grand jury indictment. It's basically an accusation that some kind of misconduct has occurred. The Senate on the other hand is entrusted with the power that try impeachments and so once an impeachment has been made by the House, those charges are then carried over to the Senate and the Senate has to have a trial in order to decide what to do with those charges and to decide whether or not the individual is actually guilty of those charges, but unlike the House which can impeach based on supermajority vote, in the Senate, it requires a two thirds majority in order to actually convict somebody of a charge of impeachment, and so it's a much higher hurdle to get over in the Senate than it is in the House. In practice, that means is largely required some bipartisan agreement in order to actually convict an officer in the Senate because one party is unlikely control enough seats in the Senate to be able to do it all on their own whereas it's easier to impeach it in the House. You only need a supermajority. It can be done on a partisan basis more easily. The second component of the impeachment power is primarily a substantive components, so in addition to setting up the rules about who does impeaching and who does the trial, often impeachment and the constitution also specifies that substantively you can only impeach under certain circumstances. You can only impeach certain officers. So it specifies that the president, vice president and other civil officers of the United States can be impeached or subject to House impeachment and it specifies that they can only be impeached under circumstances of treason, bribery, or other high crimes and misdemeanors. Other high crimes and misdemeanors is obviously, it's somewhat open-ended and vague term. It's a term that's borrowed from parliamentary practice but doesn't have a lot of very specific content. Even in that context where the framers were thinking of really is that they want a term that's flexible enough to deal with a variety of misconduct that might arise down the road without necessarily cutting off too many things, but they also want to highlight that it has to be serious misconduct that actually justifies the necessity of removing somebody early. You can't be sort of the normal policy disagreements that you might expect the executive branch and the congressional branch for example, to get into or the legislative branch and the judiciary branch to get into in general. They also put a substance constraint on the consequences of impeachment that's notable because it also departs from the British practice in that the Senate can do no more than convict somebody and upon conviction they can do no more than removing them from office and disqualifying them from future of office. They can't themselves impose any criminal penalties on that individual, which parliament in fact had the power to do. So then, somebody could be transfer over to the criminal justice system and they might be charged with crimes within the criminal justice system in ordinary courts, but the Senate itself could not impose any more punishment than simply removal from office, which makes the impeachment much more of a political process ultimately than it is a kind of criminal process that you could imagine at otherwise being, if it was possible for the Senate for example, to actually throw somebody in jail or even execute somebody for engaging in the crime of treason for example. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! Transcript [for YouTube - no speaker names/verbatim] Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the role of the legislature. Today’s episode features Professor Keith E. Whittington, the William Nelson Cromwell Professor of Politics at Princeton University. Professor Whittington is widely regarded as one of the preeminent scholars on the American Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. What experiences did the Founders consider when drafting Article I of the Constitution? What were their primary concerns about a federal legislature? So the framers have some experience with legislatures, both with what parliament did, but also what colonial legislatures did and what state legislatures did and so they knew that the new Congress should exercise a lot of the same kinds of basic powers. So they expected Congress to be able to raise taxes. They expected Congress to make fundamental decisions about spending. They expected Congress be able to make important policy decisions about setting legal mandates for the people and how they'd be able to govern. They had less of a well worked out idea about what kind of oversight Congress would do of the executive branch. They anticipated some aspects of oversight and certainly in the most extreme case of impeachment as an ability to remove executive branch officers who are engaging in misconduct but the kind of detailed legislative oversight that we see now of how the executive branch operates was not terribly familiar to them as a way that a legislature would naturally behave. Well, certainly part of what the framers in Philadelphia were thinking about is how the state governments had worked after the American revolution and those state constitutions….so one thing Madison was very concerned about is how do you make constitutions more effective so you can actually enforce limitations and not just write down what he characterizes as parchment barriers. The other thing about those state constitutions is they weighted the balance of power in those state systems very heavily toward the legislature. So they created very weak courts and very weak governors for the most part, in part because the drafters of those state constitutions during the American revolution were very distrustful of courts and the executive branch. They wanted very powerful legislatures and by the time of the Philadelphia convention, the Federalists had really decided that those state legislatures were too powerful, that the courts and the governors didn't have enough of a capacity to push back against legislatures and that was bad both in the sense that they couldn't prevent the legislature from abusing power on its own, but also they couldn't stand up to legislatures when legislature started stealing powers away from the executive and the judiciary. And so when Madison, others looked at what the state experience had been like in the first decade after the American revolution, part of what he saw was very grasping legislatures that were willing to take over executive powers and really even take over judicial powers and push aside the other branches of government and so part of what Madison's concerned about is how do you keep legislatures not only from using the rights of citizens by doing things that even you've specifically written in the constitution they shouldn't do, but also how do you keep them from running over the top of courts and executive branch officials and really trying to do their jobs as well as do the core job that you're assigning to the legislature. So each of the first three articles of the US constitution describes a different branch of governments. So Article one describes the Congress, the legislative branch. Article two describes the executive and Article three describes the judiciary and each starts the same way, that each starts with a vesting clause that vest the powers of that branch of government and that set of government officials and so article one begins by vesting legislative power in the legislature of the new legislature being created by Article one the Congress, but Article one's vesting clause looks a little different than the vesting clause of Article two and Article three because it doesn't vest all legislate power in Congress, it vests the legislate power that's herein granted to Congress because elsewhere in Article one, the founders actually specify exactly what let's say a powers Congress is supposed to exercise. And so they're not trying to give all the legislative power that exists in the United States or even in federal government necessarily to Congress. They're trying to give them very specific powers and this is partially a concern with federalism. How do you create a system in which Congress is going to have some legislative tasks to perform but also the state governments how are they going to have legislative tasks to perform and that effort to a set of powers the Congress is going to exercise is an effort to try to find that balance between what you expect Congress to do going forward and what you expect state legislatures to do going forward. What about the experience that the Founders had with Parliament? Did that also contribute in any way to how they conceived of a new American legislature? They're British writers who are trying to think about what kinds of powers parliament ought to be exercising and they've created a category of things that they think of as legislative powers in particular, but all that still fluid and there's still debates both in Europe and in the United States over what the full scope of those legislative powers are, what exactly falls in that category of legislative powers and some of the powers that are explicitly vested in Congress, we might not think of as being very nationally legislative in their natures of, for example, the taxing authority is not the same as the power to make law in general. It's a power that parliament claimed, a power that we increasingly thought belonged with the legislature, but it's not necessarily naturally a legislative power as such. One thing at very beginning of Article one does take account of is the fact that there's going to be two chambers of Congress. So Article one in vesting legislative power vested in a Congress and then specifies that the Congress consists of both a Senate and a House representatives. The rest of Article one then goes on to detail what those two chambers look like, but again, this is partially an English inheritance that the parliament was a two chamber body. The framers were familiar with two chamber body. A lot of the colonial legislatures had two chambers as well and so they were building that into the Congress also and that gets referenced right up front that that's both those chambers are going to be part of the single national legislature. It's not just the house representatives for example. This is the true legislature and we might think of the Senate as being an advisory body to the executive branch for example, instead the Senate is understood to be a full fledged member of the legislative branch itself. So the framers have a set of expectations about what a legislature is likely to do and what the legislative power looks like in practice and at the very heart of that idea about what the legislative power is, is the ability to make broad policy this general. So what has emerged out of England, what develops in Montesquieu's writings and the writings of other political philosophers at the time is they think of the executive and judicial power is about applying general rules to specific individuals and bringing force to bear to make sure those rules are actually implemented. What's distinctive about the legislative power is it's not thinking about specific individuals, it's not thinking about how policy is going be applied on the ground. It's trying to think about what are the general rules that ought to guide society more generally and so the concern of the legislature is trying to develop those general rules. They're not just about specific individuals or specific situations, but are trying to provide general guidelines to regulate society more broadly. In addition, there's a set of powers they also think fall within the scope of what legislatures ought to be concerned with, including the power of the purse and the ability to control money, both raising money for the government but also spending money. There's an expectation that the legislature will do some oversight of the executive branch in order to see how laws are being played out, but also provide a check on the executive branch. They don't have very well worked out views about what that oversight looks like, but we see an example of a part of what they're thinking about in the impeachment power, which they entrust in Congress the ability to remove executive branch officials that they think are engaging in misconduct in an extreme way, which presumes that the legislature is going to be a body that in part is going to be watching over other branches of government on behalf of the people that the legislature and put them in place in the first place. You mentioned how the idea for two “chambers” in the legislature came from the British experience. Can you elaborate on why the Founders thought that was so important? Did they craft different roles for the House of Representatives and the Senate? Right, so partially the framers in drafting the constitution and drafting Article one is vesting legislative power in Congress broadly, but they're also singling out a few powers and trusting them specifically to single chambers of Congress and particularly the Senate and so, one way in which they were familiar with upper chambers operating in the colonial period and the early state legislatures was there might be an upper chamber legislature that was really an advisory body to the governor and exercise some checks on the governor, but also advise the governor on making policy of various sorts and some of those kind of traditional functions were entrusted specifically to the Senate and part of the goal there was provide a kind of check on the new president. So take powers that might've existed only in the hands of the King in the context of England instead require that they be shared between the president and the Senate. So the president was not as powerful as a King might be. So, for example, the treaty making power is a power that's shared between the Senate and the president. It's not strictly a legislative power per se. It's not a law making power. It's not a congressional power. It's a power that's entrusted specifically to the Senate in cooperation with the president of the United States. Likewise, the sentence given a role in confirming appointees that the president might make both to judicial offices and also to executive branch offices where the president can't sometimes make appointments on his own, the Senate has to cooperate with that but again that's not specifically legislative function. It's an additional function that the framers and trusted to the Senate specifically. And then also the Senate singled out and being the place where all impeachments will be tried and again, that's not a specifically legislative function. It's a specialized function, really more of a judicial function that the Senate is serving in that context, but the framers need to vest it somewhere and the Senate seemed like the best place to give that kind of elevated additional power to help check other branches of government. Does the Constitution deliberately make it difficult for the Senate to exercise power? Can you give a brief explanation about how and when a supermajority is required? What purpose does the filibuster serve? So the constitution, unlike the Articles of Confederation, mostly works on a majoritarian basis. So one of the problematic features of the Articles of Confederation on the first federal constitution was it often required supermajorities in order to get anything done. So all the important decisions that the Congress was making under the Articles of Confederation could not be done on a majority basis. They really required supermajorities, which often meant they were very hard to do. So in designing the Congress, the framers really shifted toward a more majoritarian kind of body so it would be easier to make policy in general and so there were very few exceptions where they wanted to carve out an additional supermajority role. Most notably, in order to ratify treaties, there was going to be a supermajority requirement in the Senate. So you couldn't simply do it with a simple majority, but you needed more than that and likewise to potentially override presidential vetoes for legislation. So again, there's an effort to try to balance the president versus Congress. They wanted to give the president ability to check Congress and to some degree by giving him a veto power but they also decided they didn't want that to be an absolute veto power. They want to be qualified. So there was an ability to override and of course then if you're going to have an ability override, you need something other than supermajority to pass the law in the first place and so it's a place where there's a super majority requirement in that context is as well, but otherwise generally the drafters really preferred as often as possible to create supermajority for how Congress operates. In one place where we tend to think of there being a kind of supermajority requirement built into the way our system actually works is in the context of the Senate filibuster is notable that Senate filibusters are not built into the constitutional text itself, but are rather a function of the internal rules of the Senate and the Senate has changed those rules over time as to how many votes does it take to stop a filibuster and move on with legislative business and over time the Senate has actually tended to reduce how big that majority needed to be. So the earlier in American history required a very large majority, now it only requires 60 votes in order to overcome a filibuster. The Senate is now tending to shrink the scope of how many things can be subject to a filibuster so that fewer and fewer things are actually subject to the possibility of a filibuster but that's one instance in which the Senate has internally constructed a kind of super majority rule for lots of important policy decisions, but one that the constitution itself doesn't actually require, but we've regarded it as a very basic feature for a very long time of how the system actually works as a kind of protection for minority interests within the congressional process but one that we've been chipping away at over time. Earlier you mentioned impeachment as a power entrusted to the Senate. Doesn’t the House of Representatives have a role in that process also? How does it work? Why did the Founders design it this way? So notably the impeachment power is not naturally a kind of legislative power. It's a special power being given to Congress and it's being given to the two chambers of the Congress in order deal with the possibility there might be misconduct that occurs in other parts of the government and you need some kind of tool built into the government to address misconduct when it might arise and so the way the framework is constructed that is to charge each chamber of Congress with a somewhat different responsibility relative to that kind of misconduct. It charged the House with the responsibility of being able to pursue an impeachment in the first place, which means it's charged the House with the ability to investigate possibilities of misconduct and come to some conclusions about whether or not they think misconduct has occurred. The constitution doesn't specify the details or what that kind of investigation might look like. It's simply says that the House has the power to impeach and so it leaves the details of the process to the house itself to make a determination as to how to proceed and you can imagine some circumstances in which the House goes into quite lengthy and detailed investigations in order to try to get the bottom of some accusations of misconduct and you can imagine other circumstances in which the misconduct is evident to everybody in the minimal kind of effort needs to take place in order to investigate. The Senate on the other hand is charged with hearing those charges and ultimately making a more judicial like ruling as to whether or not somebody is actually guilty of those charges and so then we might conceptualize the House as serving the role of something like a prosecutor who brings the charges to the Senate and then the Senate serves a role more like a set of judges who are trying to evaluate whether or not the evidence and the law actually results in demonstrating that somebody is engaged in a kind of misconduct. Senators are expected in that context to not be acting at a purely partisan motives. They're not expected to be acting out purely political motives. The goal is they're supposed to be thinking about what kinds of misconduct has been charged about somebody, what's the evidence at hand about whether or not they're actually guilty of those charges and then they're ultimately rendering a verdict on that and they're not just simply declaring we think somebody ought to be removed from office. They're declaring that somebody is actually guilty of having committed specific impeachable offenses. It's also true though, on the other hand, despite the fact that that is a quasi judicial process, senators take an oath to treat the defendant fairly in this context. They follow rules of procedure in this process to hear certain rules of evidence and collect testimony in the context of the trial, but the Senate is limited as to what kind of penalties they can impose on the backside of the impeachment process. So they have the capacity to judge somebody guilty, but they then do not have a full arsenal of different kinds of consequences they can impose on a guilty party at that point. All they can do is remove somebody from office or perhaps take the additional step of disqualifying them from future office but they cannot impose any additional criminal penalties on somebody even if the Senate thinks that the impeached individual is in fact guilty of criminal offenses. Those criminal charges have to be separately pursued in the ordinary courts, through the ordinary criminal process and ordinary criminal punishment would be imposed in that context. It's something that occurs outside the context of impeachment. In the beginning of the podcast, you discussed how the British experience shaped the Founders ideas about the legislature. What about these impeachment powers? Was the process similar in the Parliamentary system? They're familiar with an impeachment power that parliament had exercised before. So they were familiar with such a practice but what partially motivates them to want to include that in the constitution was the creation of an infinite president where they're worried that a very powerful officer with a fairly lengthy term, something could go wrong until before the next election. So you might need some kind of mechanism to be able to remove an officer under those circumstances before the next election might occur and once they start thinking in those terms, then they start thinking, well with that ought to be true for all kinds of officers in the federal government, including executive branch officials, but also including judges should be subject to the same kind of rule. They then model the impeachment power off of parliamentary practice, although they do make some significant modifications in it as well and trying to import it into the American system and the impeachment power as it's embedded in the constitution, really has two core components. One primarily procedural and the other primarily substantive. The procedural component is that the US House of Representatives has the impeachment power and so by a simple majority vote, it can impeach an officer, which we might think of as being like a grand jury indictment. It's basically an accusation that some kind of misconduct has occurred. The Senate on the other hand is entrusted with the power that try impeachments and so once an impeachment has been made by the House, those charges are then carried over to the Senate and the Senate has to have a trial in order to decide what to do with those charges and to decide whether or not the individual is actually guilty of those charges, but unlike the House which can impeach based on supermajority vote, in the Senate, it requires a two thirds majority in order to actually convict somebody of a charge of impeachment, and so it's a much higher hurdle to get over in the Senate than it is in the House. In practice, that means is largely required some bipartisan agreement in order to actually convict an officer in the Senate because one party is unlikely control enough seats in the Senate to be able to do it all on their own whereas it's easier to impeach it in the House. You only need a supermajority. It can be done on a partisan basis more easily. The second component of the impeachment power is primarily a substantive components, so in addition to setting up the rules about who does impeaching and who does the trial, often impeachment and the constitution also specifies that substantively you can only impeach under certain circumstances. You can only impeach certain officers. So it specifies that the president, vice president and other civil officers of the United States can be impeached or subject to House impeachment and it specifies that they can only be impeached under circumstances of treason, bribery, or other high crimes and misdemeanors. Other high crimes and misdemeanors is obviously, it's somewhat open-ended and vague term. It's a term that's borrowed from parliamentary practice but doesn't have a lot of very specific content. Even in that context where the framers were thinking of really is that they want a term that's flexible enough to deal with a variety of misconduct that might arise down the road without necessarily cutting off too many things, but they also want to highlight that it has to be serious misconduct that actually justifies the necessity of removing somebody early. You can't be sort of the normal policy disagreements that you might expect the executive branch and the congressional branch for example, to get into or the legislative branch and the judiciary branch to get into in general. They also put a substance constraint on the consequences of impeachment that's notable because it also departs from the British practice in that the Senate can do no more than convict somebody and upon conviction they can do no more than removing them from office and disqualifying them from future of office. They can't themselves impose any criminal penalties on that individual, which parliament in fact had the power to do. So then, somebody could be transfer over to the criminal justice system and they might be charged with crimes within the criminal justice system in ordinary courts, but the Senate itself could not impose any more punishment than simply removal from office, which makes the impeachment much more of a political process ultimately than it is a kind of criminal process that you could imagine at otherwise being, if it was possible for the Senate for example, to actually throw somebody in jail or even execute somebody for engaging in the crime of treason for example. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!