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Answers From the FAQ, Page 7

This page is one of the answer pages for the USConstitution.net's Constitutional FAQ. There have been so many questions and answers over the years, that it was best to split them among several files.

If you're looking for the question list, you can find it in three places. First, the original, with questions listed in more- or-less the order I was asked them; next, the subject listing, with questions listed by general topics; and lastly, the Constitutional listing, with questions listed in the order they relate to the Constitution itself.

Q121. "What if the President and Vice President die and the succession goes to a person who is an American citizen but not by birth. Is this possible?"

A. It is possible that this scenario can happen, however unlikely. In this case, the law governing the line of succession also specifies that any person holding an office in the line who is constitutionally unqualified to be President under normal circumstances would be passed over and the next eligible person in the line would become President. For example, if the President and Vice President were both killed and the Speaker of the House was born in Canada, the presidency would pass to the President Pro Tempore of the Senate.

Q122. "I have been told that there is a section of the Constitution that talks about dividing existing states and how it cannot happen. Can you help me find this article?"

A. Article 4, Section 3 deals with this issue. It says that no state may be created from within the boundaries of an existing state unless the existing state agrees to the division. West Virginia was created from within the borders of Virginia during the Civil War when unionists declared that the state legislature was invalid and they convened their own legislature, which the United States recognized. This new legislature approved the division of Virginia into Virginia and West Virginia. This is the only such time that this provision of the Constitution has been put into effect as of this writing.

Q123. "Are civil rights and civil liberties the same thing?"

A. They are used interchangeably and often mean the same thing. Certainly they do colloquially. More specifically, though, civil rights are thought to be those actions of the government that are taken to protect civil liberties. Laws that prevent discrimination on the basis of gender, for example, find a civil right in the civil liberty of equal protection. It is a very subtle difference.

Q124. "If a proposed amendment violates the Constitution, should the Supreme Court be able to block its ratification?"

A. With only one exception, an amendment to the Constitution cannot, by definition, violate the Constitution. Think it through: assume for a moment that an amendment to remove freedom of speech was ratified by the states. The amendment violates the concept of free speech embodied in the 1st Amendment, for sure. A law doing the same thing would be unconstitutional. However, since we are not talking about a law, but instead an amendment, the effect would be to negate or nullify the free speech protections. The new amendment, as a duly ratified amendment, becomes a part of the Constitution. The Supreme Court would have no power to remove the amendment, and would, in fact, have to abide by it.

Q125. "On the Checks and Balances Page, it says that a legislative check on the legislature is that only the House can originate revenue bills. I've been told that only the House can originate spending bills, too - is this true?"

A. In my opinion, the Constitution is unambiguous on the point: "All bills for raising Revenue shall originate in the House of Representatives" (Article 1 Section 7). Thus, I've listed the House's "original jurisdiction" over revenue bills (laws that affect taxes) as a check. The House, however, views this clause a little differently, taking it to mean not only taxation bills but also spending bills.

The plain language of the clause would seem to contradict the House's opinion, but the House relies on historical precedent and contemporaneous writings to support its position. In Federalist 66, for example, Alexander Hamilton writes, "The exclusive privilege of originating money bills will belong to the House of Representatives." This phrase could easily be construed to include taxing and spending. The Supreme Court has ruled, however, that the Senate can initiate bills that create revenue, if the revenue is incidental and not directly a tax. Most recently, in US v Munoz-Flores (495 US 385 [1990]), the Court said, "Because the bill at issue here was not one for raising revenue, it could not have been passed in violation of the Origination Clause." The case cites Twin City v Nebeker (176 US 196 [1897]), where the court said that "revenue bills are those that levy taxes, in the strict sense of the word."

However, the House, it is explained, will return a spending bill originated in the Senate with a note reminding the Senate of the House's prerogative on these matters. The color of the paper allows this to be called "blue-slipping." Because the House sees this as a matter of some pride, the Senate is almost guaranteed not to have concurrence on any spending bill which originates in the Senate. This has created a de facto standard, despite my own contention (and that of the Senate) that it is not supported by the Constitution.

Q126. "Was George Washington the first President of the United States?"

A. This is a question that is commonly asked of students in high school - the answer seems obvious - yes, of course George Washington was the first President. But if it is so obvious, why is the question being asked? Is there another answer? The short answer is, Yes, George Washington was the first President of the United States. The long answer is a bit more complicated.

Before the United States was established under The Constitution, there was another country called The United States. This nation was established under The Articles of Confederation. The two nations were geographically the same, but very different politically. Without doubt or debate, George Washington was the first person elected to the Presidency of the United States under the Constitution. So was there a President under the Articles, and if so, isn't that person the first President of the United States?

Under the Articles, there was no executive branch. So there was no President in the way we know it today. The only branch of government established in the Articles is the legislative, called "The United States in Congress assembled," or just "Congress." The Articles specified that there would be a presiding officer elected to a one-year term from the membership of Congress. The duties and expectations of this person are never detailed. This person was known as the presiding officer of the United States in Congress assembled, or President of Congress, or just as President. The President under the Articles and the President under the Constitution are completely different offices with completely different roles in the government. The first presiding officer of Congress was John Hanson.

The long answer, then, is that the first President of Congress was John Hanson, but the first President of the United States was George Washington.

Q127. "Can a president be impeached during a war?"

A. Looking at the Constitution, there are several places where impeachment and war are mentioned (impeachment in Article 1, Sections 2 and 3, Article 2, Sections 2 and 4, and in Article 3, Section 2; war in Article 1, Section 8 and Article 2, Section 2). Reading just these parts, it is clear that there is no provision that stops impeachment during wartime. There is no constitutional bar to impeachment during wartime. There may be political or social blocks to impeachment in wartime, though, but these are outside the purview of this site.

Q128. "Does the Constitution set any requirements for potential cabinet members, such as age or residency?"

A. A scan of the Constitution itself reveals that there is nothing therein that addresses the qualifications for members of the President's Cabinet. The only real requirements are that the President nominates a person to be a department secretary and the Senate must then confirm the appointment. Other members of the Cabinet need not even go through the confirmation process. The National Security Advisor, for example, is appointed by the President without any confirmation process. Cabinet members, whether a confirmation is required or not, have no constitutional qualifications. They can be young, old, male, female, of any race or religion, and of any national origin. Several people not born in the U.S. have served in the Cabinet, including Henry Kissinger and Madeleine Albright.

Q129. "Does anyone know the exact dimensions of the Constitution?"

A. According to the National Archives, where the Constitution is housed, each of the four pages is 28 3/4 inches by 23 5/8 inches.

Q130. "I know the state of California recently did a recall election on their governor. Can recalls be done against any elected officials?"

A. The recallability of any state or local elected official is subject to the laws of the state or locality, so it is hard to give a general answer to that part of the question. The President and Vice President can only be removed via impeachment. The other elected federal officials are Senators and Representatives. The Constitution does not specify that they can be recalled, nor does it say that they cannot be. The courts have never ruled on the subject. So the question is unresolved. However, several things point to the unconstitutionality of recalls of federal officers. First, the terms of Senators and Representative are set to six and two years respectively; a recall would effective reduce the term. Second, the Supreme Court has said that Senators and Representatives cannot have term limits; a recall is akin to a term limit in its practical application. Lastly, each house of Congress has the power to expel members; if a member has committed acts that could lead to a recall, the acts could just as easily lead to expulsion. It is likely that a vote of no confidence from a state's electorate would go a long way in influencing an expulsion vote.

Q131. "Does anyone know how many officially declared wars we had throughout history?"

A. Not as many as you might think. The United States has been involved in a great many military actions, but only a very few declared wars. A "declared war" is one where Congress actually passes a resolution placing the country into a state of war. The following is an exhaustive list of all declared wars the United States has been involved in:

Q132. "I have a friend who is taking an American Government course presently. The professor told the class this past week that the U.S. Constitution was plagiarized completely. Is there any validity to this charge?"

A. The Constitution was written by some of the same people who wrote some of the constitutions of the various states, and it makes some sense that they would pull pieces of those that were usable. Many of the framers were also members of Congress and had access to many of the documents that Congress produced, allowed them to draw from them as well. Plagiarized is a strong word today, with negative connotations.

According to The Declaration of Independence and The Constitution of the United States by Pauline Maier, Jefferson's Declaration of Independence was largely based on prior works, specifically Virginia's revolutionary constitution and the Virginia Virginia Declaration of Rights. Jefferson has worked on the former and George Mason on the latter. According to Maier, this use of existing material was entirely within the ethical standards of the day, and, in fact, encouraged. It is little wonder that parts of the new Constitution would similarly be based on prior work.

I think the simpler, and closer to the truth, thing to say is that parts of the Constitution were based on other governmental documents familiar to the framers.

Q133. "Please tell me if there is any mention of GOD or LORD or CHRIST anywhere in the US constitution."

A. There is no direct mention of God in the Constitution, except in the formation of the date used in the document: "Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven". The Lord in this phrase is, of course, Christ. That is it. Religion is indirectly mentioned in the oath of office, where a person is permitted to swear or affirm, taking into account those religions where swearing was impermissible. And no religious test was allowed for any office in the United States, which is neither a direct nor indirect reference to God or Christ, but is notable nonetheless.

Q134. "Is there anything in the Constitution, Bill Of Rights or any Amendment that adds to discrimination due to race, color, or creed? I thought that 'Sexual Preference' was added, but I am told that I am wrong."

A. There is nothing anywhere in the Constitution that specifically bans discrimination based on sexual preference. There is not even a direct ban on discrimination based on race, color, or creed. What we do have are provisions that are often interpreted that way. The 15th and 19th Amendments, which ensured that blacks and women could vote, hint at a policy of non-discrimination, but they are actually quite specific. They only involve suffrage and nothing else. However, the due process clause of the 14th Amendment has been interpreted to mean that discrimination based on traits such as race are a violation of due process and not constitutional (when done by the government or an agent of the government). It is a complex issue. Again, a ban on discrimination based on sexual preference is not a part of the Constitution, but has been extended, to some degree, based on the 14th Amendment by the courts. The subject is far from a closed one at this time.

Q135. "It was my understanding that the Constitution forbade its president to be a Roman Catholic, but after many years this was deleted because it was later deemed to be 'politically incorrect'. Is this true?"

A. There has never been anything in the Constitution, in any draft or version, that stated anything of the sort. You need only read the original to see for yourself - photographic copies are available at this site and at the National Archives site. A quick scan of the debates of the Convention, as transcribed by Madison, reveals no mention of the word "Catholic" as well. I fear you've hit upon another Internet myth.

Q136. "Can the US declare war in order to free the people of the country? I heard this once but I don't know if its true, or if it was what document did it came out of."

A. The Congress is given the power to declare war. There is no limitation or condition on this power. The Congress can declare war at any time for any reason it wishes, including to free the people of a country from oppression, or because we dislike the color of the other nation's flag. The trick is that Congress as a body must agree by at least a majority, and that is why declarations of war are so rare. It is a major task to convince half of both houses of Congress that a declaration of war is necessary.

Q137. "I recently had a debate with a friend of mine. The question was what is required to repeal an Amendment to the Constitution. I told him I thought it would take two-thirds approval of the House and Senate, the President's signature and three-fourths approval of the states. Was I right?"

A. The repeal of any part of the Constitution requires an amendment to the Constitution - this includes the repeal of a previously passed amendment. So, the process is well defined in the Constitution, and is detailed on the Amendment Page. In reading that page, you can see that you were almost right - the biggest mistake you made is that the President is not involved in the amendment process in any way.

Q138. "In what instances is a 'Supermajority' required under the US Constitution?"

A. The specific instances in which the US Constitution requires a super-majority are limited to:

Additionally, it should be noted the in a few cases, the Constitution requires a super-majority for a quorum. A quorum is that number of members of a body that are required for the body to do any work. For example, there is usually a 50% quorum requirement in the House and Senate - at least half the members must be present. In the Constitution, super-majority quorums are required as follows:

Q139. "Why can't I find anything about filibusters in the Constitution?"

A. The short answer is because there is nothing there to find: the Constitution does not contemplate the filibuster in any way, directly or indirectly. So, then, what is all this talk about the Framers, the Senate, the filibuster, and its relationship to the Constitution?

By way of definition, the filibuster is a delaying tactic that is a part of the rules of the Senate. It is a word that comes from the Spanish word for "freebooter," which means "pirate." The origin seems to be that a person who filibusters is plundering the time and focus of a deliberative body, like a legislature. Specifically, in the U.S. Senate, a filibuster is used by a single Senator or group of Senators to stop or delay action on a piece of legislation. It has long been the tradition of the Senate that debate may not be stopped unless those taking up the debate allow it to be stopped. In other words, once a Senator has the floor, he or she may continue to talk forever. This rule goes back to the very beginnings of the Senate.

The Constitution allows each house of Congress to set its own rules. Early on, both houses had unlimited debate provisions. The House of Representatives, however, as a much larger body, found this rule unworkable and rules to limit debate came into effect. The Senate, until recently, never created such a rule. The term for the use of unlimited debate as a legislative tactic became known as a filibuster in the 1850's. The first attack on the filibuster came in 1841, by no lesser a figure than Henry Clay. It survived, though, until 1917, when the Senate adopted a rule allowing a filibuster to be stopped by a two-thirds vote. Such a vote is known as "cloture." Cloture ended the ability of a single Senator to hold up Senate business, but since a two-thirds vote can be difficult to get, it certainly did not stop the filibuster.

In 1975, the two-thirds rule was changed to three-fifths. Today, the three-fifths rule allows cloture on the basis of the vote of sixty Senators. In 2005, the filibuster again came under attack when threats to filibuster judicial appointments prompted calls for a rule change specifically against filibusters on judicial appointments.

So the filibuster has its constitutional origins in the ability of each house of Congress to set its own rules. It has its origins in the framers in that they saw the Senate as a place where extended debate and discussion would have a cooling effect on the actions of the more "heated" House. And it has its origins in the concept ingrained in our political system that the rights of the minority must be protected from the force of the majority.

Q140. "I heard on talk radio that Bill Clinton was planning to figure out a way to be President again. Is there any possible way this could happen?"

A. The short answer is "No."

But because this sort of rumor circulates pretty quickly across the Internet and talk radio, let's be a little more verbose and look at all the possibilities. First, though, to the subject of Clinton: my understanding is that he was asked to speculate on how he might return to the Presidency - not that he was actually planning to try to do so.

The 22nd Amendment is pretty clear - no president can be elected to the presidency more than twice, and if a Vice President assumes the presidency, he or she can be elected twice thereafter if they serve two years of the former president's term or less, or once if they serve more than two years of the former president's term.

Any scheme to get a two-term president back into the White House, then, must get around these limits. The first way is to get that person into the Vice Presidency somehow. There is one big, major hurdle to this kind of scheme, however - the last clause of the 12th Amendment prohibits anyone from becoming Vice President if they are ineligible for the Presidency. So, a two-term president cannot be elected to be Vice President, and he cannot be appointed to replace a Vice President. Any scheme that places a two-term president into the Vice Presidency as its basis fails on its face on this accord.

The other scheme is to insert a two-termer into the Line of Succession somewhere. This is a possibility - a two-termer can be elected to the House and become Speaker, or be elected to the Senate and become President Pro Tem. Both of these positions are in the Line. A two-termer can also be named to a Cabinet position, and all cabinet secretaries are in the Line. However, there is one main sticking point in this scheme - the law prohibits anyone constitutionally ineligible from assuming the Presidency. In other words, if a two-termer was Speaker of the House, the presidency would skip over that person and fall to the President Pro Tem. Since this is just a law, and can be repealed, there is a fall-back: the 22nd Amendment. Though it specifies that no one can be elected more than twice, and this would be an assumption and not an election, it could be argued that the 22nd would not apply. I think this is too strict a reading of the amendment, and if challenged, the Supreme Court would interpret "elected" to mean any means of assuming the presidency.

All other schemes assume some pretty extraordinary circumstances - none of which are likely to ever occur. These schemes are more likely to be plots in novels or storylines on 24 than anything that would happen in real life.

The only likely scenario I can see is the repeal of the 22nd Amendment. With repeal, all of the other schemes become unnecessary. But repeal also seems very unlikely.

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