Answers From the FAQ, Page 5
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.
Q81. “In current usage, both the President and
Vice President are elected on the same ballot. Does the Constitution as
currently amended allow for these executives to be from differing
parties?”
A. The Constitution neither prohibits nor encourages the two be from the
same party. They are voted on separately in the electoral college, so
theoretically, the President and Vice President could be from different
parties. However, many states have laws which force their electors to vote for
the candidates that the winning party has chosen. There is question about
whether an elector could be prosecuted for doing whatever they want once the
election is over, but the point is mostly irrelevant – the party that wins
picks the electors, who are generally party loyalists, so are unlikely to vote
against the party.
Q82. “To whom is the president required to tender
his resignation? I think it is the Chief Justice but can’t find out for
sure.”
A. This is not part of the Constitution, but of the U.S. Code (3 USC 20). The resignation is only valid in writing,
signed by the resigner, when delivered to the Secretary of State. This rule
applies to the President and the Vice President.
Q83. “If Clinton is impeached – does Gore have to
resign? Who else would be included? Who would become President?”
A. If the President is convicted in an impeachment trial, the President is
the only person who loses his office. The Vice President would become the
President upon the conviction.
Q84. “Who was the person who actually wrote the
words of the Constitution onto paper?”
A. Jacob Shallus, an assistant clerk of the Pennsylvania State Assembly, was
paid $30 to transcribe the final draft of the Constitution.
Q85. “List the founding fathers who signed the
Declaration of Independence and Constitution.”
A. George Clymer, Benjamin Franklin, Robert Morris, George Read,
Roger Sherman, James Wilson.
Q. “List the founding fathers who signed the Declaration of
Independence and Articles of Confederation.”
A. Samuel Adams, Josiah Bartlett, William Ellery, Elbridge Gerry, John
Hancock, Thomas Heyward Jr., Samuel Huntington, Francis Lightfoot Lee, Francis
Lewis, Thomas McKean, Robert Morris, John Penn, Roger Sherman, John
Witherspoon, Oliver Wolcott.
Q. “List the founding fathers who signed the Declaration of
Independence, the Articles of Confederation, and the
Constitution.”
A. Robert Morris and Roger Sherman. Elbridge Gerry attended the Convention
but refused to sign at the very end.
Q86. “How much power does the VP have in the
Senate? I understand he is the President of the Senate and can cast a vote only
in the event of a tie.”
A. The Vice President is the President of the Senate, and as such, has the
power to preside over any session of the Senate. I’m not exactly sure how
powerful that makes him, though the Rules of the Senate do grant the President
a lot of procedural power. He does only have one opportunity to vote (to break
a tie); and he is the presiding officer in any impeachment except that of the
President.
Q87. “How long did it take to write the original
Constitution?”
A. The question is not as straight forward as it might sound. The
Constitutional Convention made many drafts and many revisions to the
Constitution. Better, perhaps, to note when the Convention started, May 25,
1787; and when it adjourned, September 17, 1787, or 116 days.
Q88. “Can a sitting President be convicted of a
criminal offense? Or, must he be impeached first, then tried?”
A. There is no easy answer to the question, as it is a matter of
interpretation. I think most Constitutional scholars would agree that the
notion of separation of powers prevents the President, and perhaps the Vice
President, from being prosecuted in criminal court while in office. So for a
conviction, the President would have to either be removed from office, or the
trial would have to wait until his term expired. Where there is less certainty
is if a sitting President can be indicted while in office. In 1999, there were
rumors that President Clinton might be indicted by Independent Council Kenneth
Starr while Clinton was still in office, but this never came about.
Q89. “If a President has civil litigation brought
against him during his term in office must this be handled while he is in
office? Or, can it be deferred until his term expires?”
A. A civil case can be deferred, and before 1997, most people would likely
have guessed that any civil case filed against the President would be
deferred. However, a Supreme Court ruling against President Clinton in 1997
allowed a civil case against him to proceed. The reasoning was that since the
case against him concerned acts committed prior to his taking office, that the
Presidency did not lend him a shield against such litigation. The decision
would seem to leave in place the notion that a President cannot be sued for
actions taken as President, protecting Presidents from frivolous lawsuits
designed to tie up an administration’s conduct of national business.
Q90. “How many words are there in the
Constitution? How many are in the Declaration of Independence?”
A. There are 4543 words in the original, unamended Constitution, including
the signatures. The Declaration has 1458 words.
Q91. “I have a history class and the teacher will
give us extra credit if we can go to class tonight with the answer to this
question… Technically, the U.S. Constitution is an illegal document…
Why?”
A. The commission of the Constitutional
Convention was to propose amendments to the Articles of Confederation. Instead, the Framers decided that not amendment but
replacement was the best course. Technically, the Articles of Confederation
could not be amended without the consent
of each and every state in the United States. The Constitution, however, calls
for ratification by only nine of the thirteen
states. If the Constitution was an amending document, it would indeed have been
illegal.
But the Constitution may be better called a document of revolution – it
overthrew the confederation with a federation. The revolution, however, was
bloodless and with the consent, eventually, of all of the states. Rhode Island
and North Carolina were hold-outs in ratification, and they did not actually
become parts of the new United States until after the U.S. had been operating
for a short time – they realized the futility of trying to go it alone.
So, I suppose in some very technical ways, the Constitution was illegal for
a short time; however, since it was accepted by all 13 states that made up the
United States under the Articles, I’m not sure you could argue that it is still
so.
Q92. “President Clinton has been accused of
selling nuclear technology to China – how can we get him convicted of
treason?”
A. First, it is interesting to note that treason is the only crime that is
defined in the Constitution. Specifically, it
is adhering to or giving comfort to the enemies of the United States. It can
only be proven if the accused admits to it in open court or on the testimony of
two eyewitnesses.
There are a few key issues here that strike at the heart of the “Clinton is
a Traitor” war cry. First, the President did not sell any thing to the Chinese
directly. There are allegations that the Chinese had a spy in the United
States’ nuclear weapons development facility at Los Alamos; one certainly
cannot hold the President responsible for the acts of a spy. Other allegations
are that the Clinton administration knew about the spy and did nothing about
it. If this is true, holding the President responsible for the inaction of a
subordinate seems unfair.
Another allegation is that the President authorized the sale of U.S. missile
technology to China – but again, the President is not directly responsible for
authorizing transfer of technology to other nations. There is government
involvement, but the transfer was initiated by U.S. companies, not the U.S.
government.
Finally, and this is the clincher: China is not an enemy of the United
States, and hence there cannot be treason (this does not mean that laws were
not violated, but treason was not committed). Some may argue that China is an
enemy, and on the face of it, it may seem so. But China is a major trading
partner, and one does not trade with one’s enemies. China and the U.S. are
cooperating, or at least trying to, on the question of North Korea. Enemies do
not cooperate in this way. And the U.S. Code defines an enemy as a nation with
which the United States is at war. That’s it. We are not at war with China,
either de facto or de jure. Hence, no matter what else is said,
there is no treason (but, again, there could be violations of other laws).
Q93. “How is the Constitution a living
document?”
A. The Constitution has been termed a “Living Document,” but whether you
think it is, or rather should be, depends on your interpretation of the Constitution itself.
Through out time, the Constitution has been interpreted by many people;
Presidents, Congress people, Judges, Justices, and plain folk like me. The
fact that we are able to do this at all is where the phrase comes from.
Some believe that the Constitution is a whole document in and of itself, and
that any further interpretation of its text is not only unnecessary but
undesirable. However, my feeling is that the bulk of the people in the United
States take a view that allows the Constitution to be interpreted to at least
some extent. In interpreting the Constitution, it is said to grow, expand,
adapt. In this way, it is like a living thing. It is able to take the
external surroundings and change to suit them. These changes are most visible
in the decisions of the Supreme Court.
For example, at one point, the Court ruled that separate institutions for
black and white citizens were perfectly legal and constitutional, as long as
the institutions were equal in power and efficacy – the “separate but equal”
doctrine. In this century, the Supreme Court turned this doctrine on its ear
by declaring that separate cannot mean equal, and segregation was
unconstitutional.
Q94. “I searched your site and can’t find out when
inauguration day is!”
A. Inauguration Day is set in the 20th
Amendment. For President and Vice President, the term ends, and the next
term begins, on January 20th following an election. For Senators and
Representatives, the terms end and the next begins on January 3rd following an
election. The time between the election and Inauguration Day, by the way, is
known as the Lame Duck period, particularly if the President was not
reelected.
Q95. “Why has the Constitution endured the last
two hundred years when many other countries’ don’t?”
A. There are lots of reasons, not the least of which being that the
Constitution established a government that has served the people well and has
protected the rights of the people. If either of these two goals had not been
met, the Constitution we have today would have been replaced a long time
ago.
Now, obviously, our government has a lot of room for improvement, and there
are lots of issues that we face, such as Presidential power and campaign
finances. And the rights of the people are not absolute, in law or in practice.
Over time, many changes have been suggested,
though in the end, few actual changes in the Constitution have become
amendments. But when you look at the revolutions in nations since our own, it
is clear that the people of America have led a relatively quiet existence with
a relatively benign government. There have been times of unrest, to be sure,
such as the Civil War, Reconstruction, the Depression, the Red Scares,
Desegregation, etc., But even so, there has been no reason to drastically
change the Constitution.
The brothers Collier, in Decision in Philadelphia (available on my
Books Page) say the following are the reasons the
Constitution has survived: it reflects the ideals of the American spirit; it
recognizes human nature; it establishes a strong government; the rights of
minorities are protected; and finally, it is not reflective of any particularly
radical ideal or viewpoint, but rather a melding of many opinions and
philosophies.
Q96. “What government body elects the
President?”
A. The Electoral College votes for the
President and Vice President. Whichever person gets the most votes for
President becomes President, and whichever person gets the most votes for Vice-
President becomes Vice President. It would, however, be inaccurate to call the
Electoral College a government body. What you might be thinking of is that the
votes of the College are opened in a joint session of Congress. If, at that
time, there is no majority winner, the Congress chooses the winners (the House
chooses a President, and the Senate chooses a Vice President). See the 12th Amendment for details.
Q97. “How many members of Congress are
there?”
A. There are 100 Senators and 435 Representatives, so there are 535 members
of Congress. The House has several non-voting members that are not included in
the count (see the Members of Congress Page for a
list of the current Congress). The number of representatives kept rising until
a law was passed in 1911, locking the number of representatives to the number
current at that time. That number was 435.
Q98. “The Constitution proscribes an ‘enumeration’
every ten years in a manner proscribed by law, but no more. Aside from telling
how many persons in my household, the rest of the questions appear
‘unconstitutional’ and I shouldn’t be required to answer them.”
A. Article 1, Section 2, Clause 3 requires
that the government conduct a census every ten years. This is an actual count
of all the persons in the United States.
The census was fixed at April 1, 1980, and every ten years thereafter. This
decennial census is to be a head-count. A mid-decennial census, taken in 1985
and every ten years thereafter, is to be taken, and sampling methods may be
used. Only the decennial census is to be used in the apportionment of
Representatives. (13 USC 141)
The questions have nothing directly to do with the Constitution. The
government has the authority to ask the questions in line with its duty to
conduct the census, as well as in line with its other powers. You are required,
by law, to submit to the census (13 USC 221), and can be fined up to $100 for
not answering any census question. Giving a willfully false answer is
punishable up to $500. The law does not require you to disclose information
about your religion.
More information about the Census can be found at the
Census web site. Questions about the
census forms are answered here.
Q99. “How many electors are there in
total?”
A. Article 2, Section 1, Clause 2 provides
that “Each State shall appoint … a Number of Electors, equal to the whole
Number of Senators and Representatives to which the State may be entitled in
the Congress.” Based on this, we can easily determine the number of electors.
The number of Representatives is fixed at 435 at this time. This is regardless
of the number of states. The number of Senators is based on the number of
states, two each – at this time, 100 total Senators. In addition, the 23rd Amendment provides the District of Columbia
with the same number of electors as the state with the fewest electors – in
other words, 3. 435 plus 100 plus 3 is 538 electors. When you hear
commentators refer to the magic number of electors needed to win the
Presidency, that number is 270, or half plus one.
Q100. “Recently, I read in my Constitutional Law
textbook, that two framers of the Constitution served as Supreme Court chief
justices. However, my professor and I could only recall one, John Rutledge.
Who was the second framer that served as a chief justice? “
A. John Rutledge is the only framer who signed the Constitution who actually
became a Chief Justice of the Supreme Court. Oliver Ellsworth, who succeeded
Rutledge as Chief, was at the Constitutional Convention, but left a month prior
to the signing. Other framers who served as Associate Justices were James
Wilson, John Blair, and William Paterson
Note that Rutledge served only until his appointment came up for confirmation
in the Senate, where his nomination was rejected, partly due to political
considerations, and partly due to concerns about his mental health.
The William Johnson who served as a Associate Justice in 1804 was not the
same William Johnson who signed the Constitution.
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Last Modified: 24 Jan 2010