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How the Constitution deals with civil liberties and privacy in an age of technological change

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I'm Walter Isaacson of the Aspen Institute i'm here with jeffrey rosen the National Constitution Center talking about the Constitution itself let's go to article1 and let me read you the very first phrase it said all legislative powers herein granted shall be vested in a congress of the united states why is that article 1 they put the Congress first right the framers anticipated that Congress would be the main body of the federal government more important than the president more important than the judiciary certainly and the central debates in the constitutional convention concerning the structure of Congress and how representation should be a lot so we get to the second half of that sentence says which shall consist of a Senate and House of Representatives why not just have one Congress why have two houses there was a unicameral as they call it legislature and the Articles of Confederation but that was considered a disaster they couldn't agree on anything there was unanimity rule and it was paralyzed the big debate in the convention was whether both the Senate and the house should be elected by the people as James Madison favored or elected by the states so this gets to the issue of whether we were just a conglomeration of separate states each with the same amount of votes or whether we will one nation of one people exactly we talked when we discussed the preamble about that central debate and of course the smaller states were eager to maintain an idea of state sovereignty because they felt that they would be swallowed under a population-based system so as we see as we begin section 2 they kind of split the difference i start with the House of Representatives and it says it shall be composed of members chosen every second year by the people of the several states so what does that mean that means that the house is the people's house there's a popular election and the big debate of course was what would be the formula for a population to decide how many legislators would represent the people this was a huge deal the only time that General George Washington spoke in the Constitutional Convention was to object that the basis for representation was too small it was one representative for every 40,000 he wanted it for every 30,000 so this was really the thing that the framers were most concerned about so in other words a house is pretty much proportional so that a big state like New York obviously gets more members in the house because this is the branch of the Congress that's directly elected by the people that's exactly right and small states with less population have less power analysis so then we get to section 3 and that begins the Senate of the United States shall be composed of two senators from each state so that sort of the grand compromise right it was indeed James Madison and his fellow Virginian delegates had proposed the Virginia Plan which wanted both the Senate and the house to be popularly chosen New Jersey came up with a new jersey plan which would have based the representation in the Senate by state legislatures and Connecticut led by Roger Sherman brokered a compromise that led to the New Jersey Plan be applied to the Senate and population based in the house and so then what we see is each of these houses has certain things that they get to have primary control over if we look down on the sentence as a Senate shall have the sole power to try all impeachments why did they give that to the Senate the notion I think was that the aristocratic house was more of a judicial chamber and was more appropriate for that sort of activity than that so those removed from the people a bit it's more of a like a House of Lords almost exactly so but remember it's the House of Representatives that has the power to impeach presidents in the first place it's the house that impeaches and the Senate tries and convicts was a nice division of power so they create a house and the Senate how do they allocate the roles of each of those two bodies each of the bodies have different responsibilities take impeachments in article 1 it says the House of Representatives shall have the sole power of impeachment in other words they can decide whether or not to accuse a president or other high official of high crimes and misdemeanors but we learn later on that the Senate shall have the sole power to try all impeachments so really that kind of it's a balance of powers they're balancing things and the most important thing to me seems to be in section 7 which is how do you get taxes how do you raise revenues that's what Congress really does and says all bills for raising revenue shall originate in the House of Representatives but the Senate may propose or concur with amendments as on other bills that was in happened in theory but did that ever happen in practice well it was hugely important to the framers because remember was the lack of a powered attacks that made the Articles of Confederation so ineffective in practice today things are complicated by a committee system where bills may originate in the Senate and later be incorporated in the house but today there's a controversy about whether or not aspects of the Affordable Care Act are constitutional because the claim is that they originated not in the hospital the Senate and they were indeed declared to be a tax bill so they should have originated in the house according to the constitution precisely so now let's look at section 7 it says every bill which shall have passed the House of Representatives and the Senate shall before it becomes a law be presented to the president of the United States what does that mean that's known as presentment that the jargon is that we have bicameralism to houses and presentment meaning that it has to be presented to the president and a bill cannot be a law unless the president concurs in it or if he vetoes it two-thirds of the house has to override his veto and that's what the Constitution says so that's really a way of dividing the power between this legislative branch they set up and then the executive which is in the next article so important to James Madison was the idea that both separation of powers and checks and balances the idea was that power had to be separated and diffused and the only way of constraining tyranny was to force the President Congress to work together let me do one more phrase from this article one that describes what Congress does and that's this particularly interesting one which is that one of the roles of Congress will be to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries what does that mean well this is a wonderful power it comes in article 1 section 8 which is the powers of Congress and this is being litigated today where there is a controversy about the so-called Disney copyright extension Act which gave the heirs of inventors the right to revenue for many decades plus the life of the author and the claim was that that violated the Constitution's claim that you can only secure copyrights for limited times for the purpose of promoting the progress of science copyright is necessary to allow people to profit from their ideas but it has to be limited so that ideas can be shared and information can be free it was a very enlightenment based idea inspired no doubt by our greatest constitutional scientist and inventor Thomas Jefferson yeah it's all very interesting hat and the reason I picked this out is they enumerate very specific things that Congress is allowed to do well this was crucial because they feared a government of unlimited powers that was the British system where the key in Parliament could do whatever he liked and by setting out particular powers that Congress had the claim was that they meant to deny others now at the same time Congress is given the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution and the government of the United States and that's crucial Claus at the end of article 1 section 8 the so-called Necessary and Proper Clause suggests that merely because a power isn't absolutely written down it does mean that you can't do everything necessary to enforce the powers that are granted and today some of our most hotly contested debates come over the scope of the Necessary and Proper Clause more libertarian people claim that Congress if they can't point to the particular clause in article 1 section 8 they don't have the power people who favor a more expansive government and point to the Necessary and Proper Clause and say that the power should be construed liberally to allow them to be carried out and into effect just one more clause in this article that will do which is to regulate commerce with foreign nations and among the several states and the Indian tribes what does it mean to regulate commerce and how is that been interpreted Wow well you've certainly picked the most controversial of all clauses in article 1 section 8 because this is the foundation of most of what the post New Deal regulatory state does all of the alphabet soup industries created after the New Deal are justified in the name of regulating commerce among the several states and in fact the central controversy over the Affordable Care Act that President Obama passed was whether it could be justified as a form of regulating commerce opponents of the constitutionality of the Affordable Care Act mandate claim that Congress has the power to regulate economic activity but not economic inactivity and they said the decision not to buy health care was a form of economic inactivity so this is called the Commerce Clause and as the regulatory state grew basically the federal government says almost any form of Commerce is interstate commerce and therefore we can regulate it exactly right and the central case that set forth this broad interpretation of the Commerce Clause was called Wickard in full burn and it was decided in 1940's in that case there was a farmer who is growing wheat in his backyard and eating it for his own domestic consumption and the federal government wanted to regulate his backyard wheat and he said through I'm not engaged in interstate commerce I'm just eating my weed and the Supreme Court agreed that Congress did have the power to regulate this guy because they said if he eats his own wheat he's likely to buy a little less wheat from other people and that will have some tangential effect on Interstate Commerce now people today claim that is going much too far and there are those who say that that case mark the end of any sort of real limitation on congressional power and next lesson we'll talk about article 2