NARRATOR: Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Professor Gary Lawson, the Philip S. Beck Professor at Boston University School of Law. He has authored six editions of a textbook on administrative law, co-authored two books on aspects of constitutional history, and authored or co-authored more than seventy scholarly articles. 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: We’re here today with Professor Gary Lawson to explore the function of the Constitution, and how foundational concepts such as separation of powers and the rule of law work in practice. What kind of document is the Constitution? Does it matter? GARY LAWSON: If you actually sit down and read the Constitution from beginning to end, you probably won't make it. It's an incredibly boring, tedious document. Very few flowery phrases about the rights of man and human dignity and all the ... No. Almost everything in the Constitution is this technical, boring, dreary stuff about how you pick these people and the method of selection for those people and the process for law making and all that. Why is the Constitution so dull? The reason is because almost everything in the Constitution, the overwhelming majority by any measure, has to do with how the national government is going to be put together, what the national government is going to be allowed to do, how the national government is going to be allowed to do it. We call all of these things collectively the structural constitution, because it has to do with the structure, the architecture, of the national government. How is the national government internally assembled? How does the national government relate to the state governments that pre-existed? We divide those structural terms into separation of powers (the internal organization of the national government) and federalism (how power is divided between this constituted national government and the pre-existing state governments). I would add a third element to that. I think an important part of the structural constitution is not just the separation of powers but how within each of the units of the national government -- Congress, the executive, the courts -- power is internally allocated and how the people within those units are selected. I would break it down even further, but let's just stick for now with separation of powers and federalism. Why structure? Why not instead just come up with a document that lists 873 rights of the people and go from there? You could do it that way. You can have a document that lists 873 rights of people. You could even have a document that lists fewer rights, but does so in much more flowery language. You could have a whole series of provisions that say, "Do good. Do real good. Don't do bad. Do great things." All of that could be written down and people could look at it and cheer. The problem is how is it actually going to work in practice? Constitutions, like everything else in the universe, are not self enforcing. Whatever institutions are created by a document are going to be staffed by people. Whatever rights are articulated are going to be interpreted or applied or not applied by people. What a focus on structure does, assuming that the structure is well designed, is, to put it gently, economize on goodness. If all you're doing is listing rights, you're relying on the goodness of the people who are applying that document to make it work. Maybe that'll work. Don't bet on it. A structural constitution doesn't bet on it. Structural constitutions design institutions not that will work even with terrible people. Nothing is going to work with terrible people. If everybody's a terrible person, you're screwed. Doesn't matter what your constitution looks like, everything's in the toilet. You're going to have to have some minimum level of decency and goodness for any social organization to function. What a structural constitution does is minimizes the extent to which you have to rely on that. It does it through a fundamental strategy of divide and conquer. Don't put all the power in one place. If people are going to exercise power, make them assemble different groups of people. Maybe even different majorities, maybe even different super majorities, across different constituencies in order to get anything done. That's essentially what separation of powers is all about. You don't have the same person making the laws, enforcing the laws, interpreting and applying the laws. For anybody to go to prison, Congress has to pass the statute, the executive has to arrest and prosecute them, and the judges and the juries have to agree that they go to prison. Requires a consensus among a lot of different bodies. Federalism works the same way. There are certain governmental powers. Well, guess what? The national government isn't getting all of them. It's only getting a subset of the sorts of things that a government theoretically could do. Why? Because you don't want too much power in one place because maybe people will assemble all those necessary super majorities and when they will, you don't want them to have too much. PUBLIUS: The Constitution divides power, yet doesn’t have a Separation of Powers clause. Can you tell us more about why that is? How does the Separation of Powers work in practice? GARY LAWSON: One of the fundamental devices, maybe the most important device that the constitution uses to structure itself, is the principle of enumerated powers. There are several consequences that flow from the principle of enumerated powers. One of the most important of those is the separation of powers. Now, in the 18th century there were many state constitutions that actually wrote separation of powers clauses into their constitutions, things like, "The legislature shall never exercise the executive or judicial power or any of them, the executive shall never exercise the legislative or judicial power or any of them, the judiciary shall never exercise the legislative or executive power or any of them, that it may be a government of laws and not of men." That kind of provision was not at all uncommon in the 18th century. The United States constitution doesn't contain that kind of provision. It established its separation of powers through a different method. It simply defined the powers of the various institutions of the national government in such a way that they could only do certain things and not other things. The mechanism for that is to divide governmental power into three categories. Legislative, executive, judicial. You then take those three governmental powers and you put them into different institutions with different methods of selection, different constituencies, different protections. All legislative powers herein granted, meaning not the sum total of all legislative powers in the universe, but just the portion of it that the constitution chooses to grant, that goes to Congress, consisting of a house and senate. That's article one. The rest of article one then defines the composition of the house and senate, how they're going to be selected, how they're going to operate their business, and then it lists most of the powers herein granted that they have. You then take the executive power, that gets vested, in article two, in a president. Not all executive power herein granted, the executive power. So whatever conceptually falls within the executive power, that then goes to the president. You then have a series of other things that clarify, qualify, limit that grant of executive power in certain contexts, things like treaties, which brings the senate in as a confirming body. Appointments also bring the senate in as a confirming body, limitations on the power of pardon, those sorts of things, and obligation to take care that the laws be faithfully executed. But the basic grant of power is in the first sentence of the article. The executive power shall be vested in a president. Then you take the judicial power and you vest that in the federal courts, who are defined to have certain characteristics. Tenure during good behavior, guarantees against diminishment in salary while in office. And once you've done that, separation of powers just follows. Power is separated because you've only granted certain kinds of powers to certain actors. So any actor that's looking around to see if they can do something, they have to be able to trace what they're doing to the power that they have, something that's incidental to the power that they have. If they can't do that, then they can't exercise that power, hence separation of powers. So it's a particular strategy used because the United States government was being created essentially out of scratch, as opposed to a constitution limiting, clarifying, qualifying the powers of a pre-existing government. In that context, an express separation of powers clause might have made more sense, been more necessary. PUBLIUS: Dividing power introduces some inefficiencies - all we have to do is look at Congress to see the consequences of gridlock playing out in practice. Does our Constitution go too far in that regard? GARY LAWSON: It's sometimes claimed that the constitution makes it difficult, too difficult, is often the subtext, to pass laws through congress. And there's something to that. The lawmaking process set up in the constitution is designed to make that process difficult, right? Think about how that process has to work. You've got two distinct bodies in the United States congress, the house of representatives and the senate. They are selected by different constituencies, respond to different constituencies, the house elected usually by district. There's nothing in the constitution that requires that. Sometimes they've been elected at large, but it's a matter of modern practice, by local districts within states. Senators elected, after 1917, by popular vote within the states, but different electorates representing a member of congress versus a senator. In order for anything to happen, both those bodies, the house and senate, must agree on exactly the same language in a bill. They then have to present it to the president for signature. If the president vetoes it, you've got to go back and get supermajorities, two thirds in each of the house and senate, to get it through. So the process is designed to create what I've earlier called veto points, places in the process where if it's not a great law, something can stop it. The process is designed to require a consensus, in order for a national law to be enacted. Could be that you can muster the necessary majorities just through regional power, but it's harder to do when you've got to get these three separate institutions, the house, the senate and the president, all to go along with it. That process protects federalism, the states, largely through the role of the senate. Originally it was a much stronger protection for the states, because the senators were chosen by the state legislator, and therefore represented the states directly. Still, the two votes for each state means that Wyoming counts just as much as New York. So if you want something to happen, probably not enough to get New York and California to go along with it, you have to have at least some other states that are willing to agree that it's a good idea. Now, whether these multiple veto points make the process arduous, I suppose, is a matter of perception. There are some people who look at the United States code, the massive volume of federal laws, a massive federal criminal code and so forth and say, "Why is the national government doing all of these things? It's not hard to pass legislation, they do it all the time!" Other people who have what they think are just wondrously grand ideas, that somehow run into one or another of these veto points, complain, of course, that, "Well, it's horrible that you can't get legislation through process. The process is too difficult." So whether it's difficult or too difficult depends to a large extent on the eye of the beholder. All we can do is describe the process with its multiple veto points and think about why it is that the constitution was designed in this way, what interests of states, of national consensus, it was designed to protect, and then we can all make our own decisions about how effective that structure has been. PUBLIUS: Why the emphasis on structure? Shouldn’t we focus more on overall results or outcome of a document like the Constitution, of specific legislation, not just the mechanics? GARY LAWSON: A structural constitution represents a risk aversion. You worry about what happens when the sorts of people who you know are out there in the world and the sorts of people who you know are going to be attracted to an institution of government actually get in control. What can they do? There is a cost to all of this. It makes law making less coherent, makes it more difficult. If you have a really, really great idea that you think will save the world, it makes it harder for your really great idea that you think will save the world to be implemented. There are trade offs on this, just like in an investment, you can invest in very high risk, very high return investments. You can invest in relatively low risk, very low return investments. The Constitution, a structural constitution represents a choice to take the relatively low risk, relatively low return route. That may be wise, may be unwise, also explains why a lot of people don't like the Constitution. Why a lot of people feel stifled by the Constitution. They may prefer the high risk, high reward approach because they're reasonably confident that they're the ones that will reap the reward and other people will bear the risks. That at least, I think, is the theory behind focusing on structure. PUBLIUS: Rule of Law also plays into our understanding of the Constitution, right? The Structural Constitution works in part because we have the rule of law. It was part of our Founders expectation for how structure would work in practice… but what is it? GARY LAWSON: Nobody has ever come up with a universally acceptable, or for that matter, widely acceptable, definition of the rule of law. There may not be any term in American jurisprudence, used more often without as little as definition as the term the rule of law. I don't have the definitive definition answer that everybody is going to sign on to. .. About 20 years ago, a great country music singer, Clint Black, did a song about love. And he said love isn't a series of things that you can attach to ... "Something that we Do" is the name of the song. Something that we do. Love is just something that we do. I'm inclined to think the rule of law is something that we do. It's not just, can't be just, a practice of structuring conduct in accordance with formal legal rules. That's surely part of it. It can't be all of it. If that was all of it, then a regime like Nazi Germany could be the exemplar of a rule of law regime, as long as it strictly followed its own rules. Can't possibly be right. Rule following, would surely be part of it. But there's got to be more. It's got to have something to do with the substance of how the society is organized, the attitudes that people have toward authority, towards dispute resolution, towards social organization, towards the rights of property. It's a lot of things all thrown together. It's not a particular set of propositions that you can write down. It is, as Clint Black so wisely put it, something that we do. If I were going to try to define the rule of law, to try to explain its importance to the founding generation, I would say go back to the 18th Century and have somebody look around the last couple of hundred years of Anglo-American civilization, and say, "Yeah, kind of what we've been doing up til now, that's sort of what we mean by the rule of law." For fans of F.A. Hayek, it would be a spontaneous order. It's something that simply emerges unplanned from the actions of people aiming at other goals. It's the sum total of those practices, those attitudes, and those habits of mind that shape a particular culture. It's fundamental to the Constitution even though the words rule of law never appear because it's those attitudes, those habits of mind that shape, that ground, that are the foundation for that entire Constitutional order. It's just taken for granted by the entire scheme. PUBLIUS: We’ve now talked about the background and context of the Structural Constitution. But now, perhaps an even more important question - why does it matter what the Constitution is? GARY LAWSON: Suppose I hand you three docs. Each one of those docs contains exactly the same words. They could all be photocopies of a single document. Three identical documents. I then tell you, one of them is a poem, one of them is a shopping list, one of them is a secret code. Are you going to read, interpret, those three documents exactly the same way just because the words are identical? I would guess not, because knowing something about what the kinds of documents are tells you something, not everything, but something about how to go about reading them. If I tell you it's a poem, you're going to be on the alert for literary devices, metaphor, irony, those sorts of things. You may or may not find them. Depending on how good a poem it is. But that's the sort of thing that your mind would be alert for. If I tell it's a shopping list, and you start looking for literary devices, you're going to be in big trouble. You read the shopping list and it says, "Get four apples," and you think to yourself, "Well, apples, that's metaphor for sin." So you come home with four boxes of double stuffed Oreos instead. This is a bad thing to do. Then if I tell you it's a secret code, all of that goes out the window. You won't actually have any idea what to do with those words until you figure out how to crack the code. Moral of the story is knowing what kind of document something is, is extremely important for figuring out what you're supposed to do with it once you have it, how you will figure out its meaning. Now you're handed the United States Constitution. What is it? Probably not a shopping list. Probably not a secret code. Probably not a poem, although as I will explain in a moment, some academics have come pretty close to calling it that. How would we go about figuring out what it is? You look at it, you compare it to other kinds of documents, and you see if there's anything that it resembles. You may come away thinking it doesn't resemble anything, it's just its own unique thing, and you don't gain anything by comparing it to other kinds of documents. That's a possible position to take. But there are a lot of other documents that were around in the 18th Century. The idea that it wouldn't draw on any of those other kinds of documents, seems unlikely. Think for a moment about what other kinds of things it might resemble. Once you go down that path we have 225 years of people coming up with all sorts of comparisons. The Constitution is like something or other. Lots of something or others that you can fill in. Just a very, very small sample of the enormous range. The Constitution is like a super statute. The Constitution is like a treaty. The Constitution is like a corporate charter. Constitution is like an instruction manual. Constitution is like a chain novel. Chain novel? That one's really big in the academy, has been for decades, trust me. Here's one from one of my colleagues, the Constitution is a charter of aspirations to which we owe our fidelity. And my all time favorite, this is a prominent academic describing, characterizing the Constitution. I'm going to read this so I don't get it wrong. . . "A reflection of the tension between our understanding of our present state and our understanding of social ideals toward which progress is possible" is probably going to find things in the Constitution that somebody who looks at the document and sees an instruction manual is going to react, "Where did that crap come from? What?" So it matters very much what kind of document you think you're dealing with for how you interpret it. So what's the right answer? I can give you my answer. I can't promise you that it's the right answer. The description of the constitution as an instruction manual is actually one that came from me from about 30 years ago. I'm not so sure anymore that that's right. As I survey the universe of 18th Century documents available to people, the one that leaps out as the most like, not exactly like, but the most like the Constitution, is a family of documents called fiduciary instruments. They are a subspecies of legal documents. Let's start with the assumption that the Constitution is a legal document, not a poem, not a shopping list, not a chain novel. It's full of legalese. So it's going to be some kind of legal document. Fiduciary instruments are a class of legal documents in which people give other people some kind of power to manage their affairs. You hire somebody to go to France to sell your canons. It's a fiduciary instrument. You hire a lawyer, you give someone a power-of-attorney to represent your interests, you appoint somebody a guardian of your minor child. These are all fiduciary instruments, and what we mean by fiduciary is those who exercise the power to manage other people's affairs, are supposed to follow certain rules in doing so. They're actually supposed to be looking out for the interests of the people who've given them the power, and not looking out for their own interests in the course of carrying out those functions. The Constitution isn't exactly one of those things. It can't be because among other things, the Constitution doesn't just manage the affairs of we the people, it also orders states around. That's not part of we the people. It's authorizing the government to do things to non-parties to the agreement. An actual fiduciary instrument can't do that. But it does look a whole lot like fiduciary instruments of the 18th Century. It does mostly involve this author, we the people, granting powers to certain institutions of government to manage some portion of we the people's affairs. At the very least it has enough resemblance to fiduciary instruments to make that a plausible starting point when you're thinking about poem, shopping list, secret code. The starting point for thinking about how to interpret the document. Let's just suppose I'm right, that the Constitution has enough in common with fiduciary instruments of the 18th Century to make that a plausible enough comparison so that interpretative rules for one apply to the other. What actually would that mean? It turns out there were certain rules of interpretation, principles of interpretation that applied more or less to anything in the family of fiduciary instruments in the 18th Century. There were some principles of interpretation that were specific to certain kinds of fiduciary instruments. It would matter for that purpose whether the Constitution was a power-of-attorney versus a corporate charter versus a guardianship. There are some subtle differences among them. But there were actually certain large principals that held across that entire family of documents. Principals involving how you understand the powers that have been granted to the agents. Any fiduciary document has principals: people granting power away, agents: people receiving the power. And the agents were going to have powers defined by the instrument. They were also going to have certain customary powers that normally went along with the powers that they were granted. Those were called incidental powers. There was a body of doctrine across this family of fiduciary instruments about how you tell which powers go along with the ones that were granted, even when they're not stated. There were also principles about how the agent, the one receiving the power, was supposed to exercise that power personally and not pawn it or sub delegate it to someone else. This is why viewing the Constitution as a kind of fiduciary instrument grounds a doctrine against subdelegation. That's just a background principle of interpretation that comes from it being this kind of instrument. There were also principals about what happens when more than one person is granting power to the same agent, and the agent has to decide what if the interests of this person and the interests of the other person come into conflict, how am I going to reconcile those? The short answer is, treat everybody fairly. It doesn't seem terribly helpful, but in a lot of concrete circumstances, that actually works. If the Constitution is most plausibly seen as a kind of fiduciary document, these sorts of understandings come in. Here's another one: agents are supposed to exercise the functions they're given with a modicum of care. They're supposed to pay attention to what they're doing. They actually violate the law if they're careless about how they go about their function. There are things that would just be part of the backdrop of any fiduciary instrument. And if the Constitution is a fiduciary instrument, of any kind at all, these things would plausibly be part of the interpretative backdrop of that document as well. There would be certain things that might not be spelled out because there wouldn't be any need to spell it out. They're the default. They're the background. There would have to be something in the document to change those norms if the drafters didn't want them to hold. So potentially very large consequences for how you go about the business of Constitutional interpretation, ranging from, as I say, a doctrine against sub-delegation to the perhaps to the advocates of original meaning, surprising conclusion that maybe something not wildly unlike what modern doctrine calls substantive due process, that legislatures can't do things that are unreasonable, might actually be part of the backdrop of that document, at least as far as the national government is concerned. Because agents have a duty of care and a duty to treat all of their principals fairly. Not small conclusions. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series. 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 proper structure of government. Today’s episode features Professor Gary Lawson, the Philip S. Beck Professor at Boston University School of Law. He has authored six editions of a textbook on administrative law, co-authored two books on aspects of constitutional history, and authored or co-authored more than seventy scholarly articles. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. - We’re here today with Professor Gary Lawson to explore the function of the Constitution, and how foundational concepts such as separation of powers and the rule of law work in practice. What kind of document is the Constitution? Does it matter? If you actually sit down and read the Constitution from beginning to end, you probably won't make it. It's an incredibly boring, tedious document. Very few flowery phrases about the rights of man and human dignity and all the ... No. Almost everything in the Constitution is this technical, boring, dreary stuff about how you pick these people and the method of selection for those people and the process for law making and all that. Why is the Constitution so dull? The reason is because almost everything in the Constitution, the overwhelming majority by any measure, has to do with how the national government is going to be put together, what the national government is going to be allowed to do, how the national government is going to be allowed to do it. We call all of these things collectively the structural constitution, because it has to do with the structure, the architecture, of the national government. How is the national government internally assembled? How does the national government relate to the state governments that pre-existed? We divide those structural terms into separation of powers (the internal organization of the national government) and federalism (how power is divided between this constituted national government and the pre-existing state governments). I would add a third element to that. I think an important part of the structural constitution is not just the separation of powers but how within each of the units of the national government -- Congress, the executive, the courts -- power is internally allocated and how the people within those units are selected. I would break it down even further, but let's just stick for now with separation of powers and federalism. Why structure? Why not instead just come up with a document that lists 873 rights of the people and go from there? You could do it that way. You can have a document that lists 873 rights of people. You could even have a document that lists fewer rights, but does so in much more flowery language. You could have a whole series of provisions that say, "Do good. Do real good. Don't do bad. Do great things." All of that could be written down and people could look at it and cheer. The problem is how is it actually going to work in practice? Constitutions, like everything else in the universe, are not self enforcing. Whatever institutions are created by a document are going to be staffed by people. Whatever rights are articulated are going to be interpreted or applied or not applied by people. What a focus on structure does, assuming that the structure is well designed, is, to put it gently, economize on goodness. If all you're doing is listing rights, you're relying on the goodness of the people who are applying that document to make it work. Maybe that'll work. Don't bet on it. A structural constitution doesn't bet on it. Structural constitutions designs institutions not that will work even with terrible people. Nothing is going to work with terrible people. If everybody's a terrible person, you're screwed. Doesn't matter what your constitution looks like, everything's in the toilet. You're going to have to have some minimum level of decency and goodness for any social organization to function. What a structural constitution does is minimizes the extent to which you have to rely on that. It does it through a fundamental strategy of divide and conquer. Don't put all the power in one place. If people are going to exercise power, make them assemble different groups of people. Maybe even different majorities, maybe even different super majorities, across different constituencies in order to get anything done. That's essentially what separation of powers is all about. You don't have the same person making the laws, enforcing the laws, interpreting and applying the laws. For anybody to go to prison, Congress has to pass the statute, the executive has to arrest and prosecute them, and the judges and the juries have to agree that they go to prison. Requires a consensus among a lot of different bodies. Federalism works the same way. There are certain governmental powers. Well, guess what? The national government isn't getting all of them. It's only getting a subset of the sorts of things that a government theoretically could do. Why? Because you don't want too much power in one place because maybe people will assemble all those necessary super majorities and when they will, you don't want them to have too much. The Constitution divides power, yet doesn’t have a Separation of Powers clause. Can you tell us more about why that is? How does the Separation of Powers work in practice? One of the fundamental devices, maybe the most important device that the constitution uses to structure itself, is the principle of enumerated powers. There are several consequences that flow from the principle of enumerated powers. One of the most important of those is the separation of powers. Now, in the 18th century there were many state constitutions that actually wrote separation of powers clauses into their constitutions, things like, "The legislature shall never exercise the executive or judicial power or any of them, the executive shall never exercise the legislative or judicial power or any of them, the judiciary shall never exercise the legislative or executive power or any of them, that it may be a government of laws and not of men." That kind of provision was not at all uncommon in the 18th century. The United States constitution doesn't contain that kind of provision. It established its separation of powers through a different method. It simply defined the powers of the various institutions of the national government in such a way that they could only do certain things and not other things. The mechanism for that is to divide governmental power into three categories. Legislative, executive, judicial. You then take those three governmental powers and you put them into different institutions with different methods of selection, different constituencies, different protections. All legislative powers herein granted, meaning not the sum total of all legislative powers in the universe, but just the portion of it that the constitution chooses to grant, that goes to Congress, consisting of a house and senate. That's article one. The rest of article one then defines the composition of the house and senate, how they're going to be selected, how they're going to operate their business, and then it lists most of the powers herein granted that they have. You then take the executive power, that gets vested, in article two, in a president. Not all executive power herein granted, the executive power. So whatever conceptually falls within the executive power, that then goes to the president. You then have a series of other things that clarify, qualify, limit that grant of executive power in certain contexts, things like treaties, which brings the senate in as a confirming body. Appointments also bring the senate in as a confirming body, limitations on the power of pardon, those sorts of things, and obligation to take care that the laws be faithfully executed. But the basic grant of power is in the first sentence of the article. The executive power shall be vested in a president. Then you take the judicial power and you vest that in the federal courts, who are defined to have certain characteristics. Tenure during good behavior, guarantees against diminishment in salary while in office. And once you've done that, separation of powers just follows. Power is separated because you've only granted certain kinds of powers to certain actors. So any actor that's looking around to see if they can do something, they have to be able to trace what they're doing to the power that they have, something that's incidental to the power that they have. If they can't do that, then they can't exercise that power, hence separation of powers. So it's a particular strategy used because the United States government was being created essentially out of scratch, as opposed to a constitution limiting, clarifying, qualifying the powers of a pre-existing government. In that context, an express separation of powers clause might have made more sense, been more necessary. Dividing power introduces some inefficiencies - all we have to do is look at Congress to see the consequences of gridlock playing out in practice. Does our Constitution go too far in that regard? It's sometimes claimed that the constitution makes it difficult, too difficult, is often the subtext, to pass laws through congress. And there's something to that. The lawmaking process set up in the constitution is designed to make that process difficult, right? Think about how that process has to work. You've got two distinct bodies in the United States congress, the house of representatives and the senate. They are selected by different constituencies, respond to different constituencies, the house elected usually by district. There's nothing in the constitution that requires that. Sometimes they've been elected at large, but it's a matter of modern practice, by local districts within states. Senators elected, after 1917, by popular vote within the states, but different electorates representing a member of congress versus a senator. In order for anything to happen, both those bodies, the house and senate, must agree on exactly the same language in a bill. They then have to present it to the president for signature. If the president vetoes it, you've got to go back and get supermajorities, two thirds in each of the house and senate, to get it through. So the process is designed to create what I've earlier called veto points, places in the process where if it's not a great law, something can stop it. The process is designed to require a consensus, in order for a national law to be enacted. Could be that you can muster the necessary majorities just through regional power, but it's harder to do when you've got to get these three separate institutions, the house, the senate and the president, all to go along with it. That process protects federalism, the states, largely through the role of the senate. Originally it was a much stronger protection for the states, because the senators were chosen by the state legislator, and therefore represented the states directly. Still, the two votes for each state means that Wyoming counts just as much as New York. So if you want something to happen, probably not enough to get New York and California to go along with it, you have to have at least some other states that are willing to agree that it's a good idea. Now, whether these multiple veto points make the process arduous, I suppose, is a matter of perception. There are some people who look at the United States code, the massive volume of federal laws, a massive federal criminal code and so forth and say, "Why is the national government doing all of these things? It's not hard to pass legislation, they do it all the time!" Other people who have what they think are just wondrously grand ideas, that somehow run into one or another of these veto points, complain, of course, that, "Well, it's horrible that you can't get legislation through process. The process is too difficult." So whether it's difficult or too difficult depends to a large extent on the eye of the beholder. All we can do is describe the process with its multiple veto points and think about why it is that the constitution was designed in this way, what interests of states, of national consensus, it was designed to protect, and then we can all make our own decisions about how effective that structure has been. Why the emphasis on structure? Shouldn’t we focus more on overall results or outcome of a document like the Constitution, of specific legislation, not just the mechanics? A structural constitution represents a risk aversion. You worry about what happens when the sorts of people who you know are out there in the world and the sorts of people who you know are going to be attracted to an institution of government actually get in control. What can they do? There is a cost to all of this. It makes law making less coherent, makes it more difficult. If you have a really, really great idea that you think will save the world, it makes it harder for your really great idea that you think will save the world to be implemented. There are trade offs on this, just like in an investment, you can invest in very high risk, very high return investments. You can invest in relatively low risk, very low return investments. The Constitution, a structural constitution represents a choice to take the relatively low risk, relatively low return route. That may be wise, may be unwise, also explains why a lot of people don't like the Constitution. Why a lot of people feel stifled by the Constitution. They may prefer the high risk, high reward approach because they're reasonably confident that they're the ones that will reap the reward and other people will bear the risks. That at least, I think, is the theory behind focusing on structure. Rule of Law also plays into our understanding of the Constitution, right? The Structural Constitution works in part because we have the rule of law. It was part of our Founders expectation for how structure would work in practice… but what is it? Nobody has ever come up with a universally acceptable, or for that matter, widely acceptable, definition of the rule of law. There may not be any term in American jurisprudence, used more often without as little as definition as the term the rule of law. I don't have the definitive definition answer that everybody is going to sign on to. .. About 20 years ago, a great country music singer, Clint Black, did a song about love. And he said love isn't a series of things that you can attach to ... "Something that we Do" is the name of the song. Something that we do. Love is just something that we do. I'm inclined to think the rule of law is something that we do. It's not just, can't be just, a practice of structuring conduct in accordance with formal legal rules. That's surely part of it. It can't be all of it. If that was all of it, then a regime like Nazi Germany could be the exemplar of a rule of law regime, as long as it strictly followed its own rules. Can't possibly be right. Rule following, would surely be part of it. But there's got to be more. It's got to have something to do with the substance of how the society is organized, the attitudes that people have toward authority, towards dispute resolution, towards social organization, towards the rights of property. It's a lot of things all thrown together. It's not a particular set of propositions that you can write down. It is, as Clint Black so wisely put it, something that we do. If I were going to try to define the rule of law, to try to explain its importance to the founding generation, I would say go back to the 18th Century and have somebody look around the last couple of hundred years of Anglo-American civilization, and say, "Yeah, kind of what we've been doing up til now, that's sort of what we mean by the rule of law." For fans of F.A. Hayek, it would be a spontaneous order. It's something that simply emerges unplanned from the actions of people aiming at other goals. It's the sum total of those practices, those attitudes, and those habits of mind that shape a particular culture. It's fundamental to the Constitution even though the words rule of law never appear because it's those attitudes, those habits of mind that shape, that ground, that are the foundation for that entire Constitutional order. It's just taken for granted by the entire scheme. We’ve now talked about the background and context of the Structural Constitution. But now, perhaps an even more important question - why does it matter what the Constitution is? Suppose I hand you three docs. Each one of those docs contains exactly the same words. They could all be photocopies of a single document. Three identical documents. I then tell you, one of them is a poem, one of them is a shopping list, one of them is a secret code. Are you going to read, interpret, those three documents exactly the same way just because the words are identical? I would guess not, because knowing something about what the kinds of documents are tells you something, not everything, but something about how to go about reading them. If I tell you it's a poem, you're going to be on the alert for literary devices, metaphor, irony, those sorts of things. You may or may not find them. Depending on how good a poem it is. But that's the sort of thing that your mind would be alert for. If I tell it's a shopping list, and you start looking for literary devices, you're going to be in big trouble. You read the shopping list and it says, "Get four apples," and you think to yourself, "Well, apples, that's metaphor for sin." So you come home with four boxes of double stuffed Oreos instead. This is a bad thing to do. Then if I tell you it's a secret code, all of that goes out the window. You won't actually have any idea what to do with those words until you figure out how to crack the code. Moral of the story is knowing what kind of document something is, is extremely important for figuring out what you're supposed to do with it once you have it, how you will figure out its meaning. Now you're handed the United States Constitution. What is it? Probably not a shopping list. Probably not a secret code. Probably not a poem, although as I will explain in a moment, some academics have come pretty close to calling it that. How would we go about figuring out what it is? You look at it, you compare it to other kinds of documents, and you see if there's anything that it resembles. You may come away thinking it doesn't resemble anything, it's just its own unique thing, and you don't gain anything by comparing it to other kinds of documents. That's a possible position to take. But there are lot of other documents that were around in the 18th Century. The idea that it wouldn't draw on any of those other kinds of documents, seems unlikely. Think for a moment about what other kinds of things it might resemble. Once you go down that path we have 225 years of people coming up with all sorts of comparisons. The Constitution is like something or other. Lots of something or others that you can fill in. Just a very, very small sample of the enormous range. Constitution is like a super statute. Constitution is like a treaty. Constitution is like a corporate charter. Constitution is like an instruction manual. Constitution is like a chain novel. Chain novel? That one's really big in the academy, has been for decades, trust me. Here's one from one of my colleagues, the Constitution is a charter of aspirations to which we owe our fidelity. And my all time favorite, this is a prominent academic describing, characterizing the Constitution. I'm going to read this so I don't get it wrong. . . "A reflection of the tension between our understanding of our present state and our understanding of social ideals toward which progress is possible" is probably going to find things in the Constitution that somebody who looks at the document and sees an instruction manual is going to react, "Where did that crap come from? What?" So it matters very much what kind of document you think you're dealing with for how you interpret it. So what's the right answer? I can give you my answer. I can't promise you that it's the right answer. The description of the constitution as an instruction manual is actually one that came from me from about 30 years ago. I'm not so sure anymore that that's right. As I survey the universe of 18th Century documents available to people, the one that leaps out as the most like, not exactly like, but the most like the Constitution, is a family of documents called fiduciary instruments. They are a subspecies of legal documents. Let's start with the assumption that the Constitution is a legal document, not a poem, not a shopping list, not a chain novel. It's full of legalese. So it's going to be some kind of legal document. Fiduciary instruments are a class of legal documents in which people give other people some kind of power to manage their affairs. You hire somebody to go to France to sell your canons. It's a fiduciary instrument. You hire a lawyer, you give someone a power-of-attorney to represent your interests, you appoint somebody a guardian of your minor child. These are all fiduciary instruments, and what we mean by fiduciary is those who exercise the power to manage other people's affairs, are supposed to follow certain rules in doing so. They're actually supposed to be looking out for the interests of the people who've given them the power, and not looking out for their own interests in the course of carrying out those functions. The Constitution isn't exactly one of those things. It can't be because among other things, the Constitution doesn't just manage the affairs of we the people, it also orders states around. That's not part of we the people. It's authorizing the government to do things to non-parties to the agreement. An actual fiduciary instrument can't do that. But it does look a whole lot like fiduciary instruments of the 18th Century. It does mostly involve this author, we the people, granting powers to certain institutions of government to manage some portion of we the people's affairs. At the very least it has enough resemblance to fiduciary instruments to make that a plausible starting point when you're thinking about poem, shopping list, secret code. The starting point for thinking about how to interpret the document. Let's just suppose I'm right, that the Constitution has enough in common with fiduciary instruments of the 18th Century to make that a plausible enough comparison so that interpretative rules for one apply to the other. What actually would that mean? It turns out there were certain rules of interpretation, principles of interpretation that applied more or less to anything in the family of fiduciary instruments in the 18th Century. There were some principles of interpretation that were specific to certain kinds of fiduciary instruments. It would matter for that purpose whether the Constitution was a power-of-attorney versus a corporate charter versus a guardianship. There are some subtle differences among them. But there were actually certain large principals that held across that entire family of documents. Principals involving how you understand the powers that have been granted to the agents. Any fiduciary document has principals: people granting power away, agents: people receiving the power. And the agents were going to have powers defined by the instrument. They were also going to have certain customary powers that normally went along with the powers that they were granted. Those were called incidental powers. There was a body of doctrine across this family of fiduciary instruments about how you tell which powers go along with the ones that were granted, even when they're not stated. There were also principals about how the agent, the one receiving the power, was supposed to exercise that power personally and not pawn it of or subdelegate it to someone else. This is why viewing the Constitution as a kind of fiduciary instrument grounds a doctrine against subdelegation. That's just a background principal of interpretation that comes from it being this kind of instrument. There were also principals about what happens when more than one person is granting power to the same agent, and the agent has to decide what if the interests of this person and the interests of the other person come into conflict, how am I going to reconcile those? The short answer is, treat everybody fairly. It doesn't seem terribly helpful, but in a lot of concrete circumstances, that actually works. If the Constitution is most plausibly seen as a kind of fiduciary document, these sorts of understandings come in. Heres another one: agents are supposed to exercise the functions they're given with a modicum of care. They're supposed to pay attention to what they're doing. They actually violate the law if they're careless about how they go about their function. There are things that would just be part of the backdrop of any fiduciary instrument. And if the Constitution is a fiduciary instrument, of any kind at all, these things would plausibly be part of the interpretative backdrop of that document as well. There would be certain things that might not be spelled out because there wouldn't be any need to spell it out. They're the default. They're the background. There would have to be something in the document to change those norms if the drafters didn't want them to hold. So potentially very large consequences for how you go about the business of Constitutional interpretation, ranging from, as I say, a doctrine against subdelegation to the perhaps to the advocates of original meaning, surprising conclusion that maybe something not wildly unlike what modern doctrine calls substantive due process, that legislatures can't do things that are unreasonable, might actually be part of the backdrop of that document, at least as far as the national government is concerned. Because agents have a duty of care and a duty to treat all of their principals fairly. Not small conclusions. Thank you for listening to this episode of the No. 86 Lecture series. 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!