Answers From the FAQ, Page 6
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.
Q101. “Exactly where in the Constitution does it
say that the President and Vice President cannot be from the same state? In
the 12th amendment the wording leads me to think that the electors and the
candidates cannot be from the same state.”
A. The Constitution doesn’t say that they cannot be from the same state.
However, the 12th Amendment does say that
electors may not vote for a President from their state and a Vice President
also from their state. This issue came up in the 2000 presidential campaign
when Texas Governor George W. Bush chose fellow Texas resident Richard Cheney
to be his running mate. Cheney, who had served in Congress as a Representative
from Wyoming, quickly changed his legal residence back to Wyoming to avoid the
possible conflict for electors from Texas. Court challenges to Cheney’s change
of residency were denied.
It is unlikely that two people from the same state would ever be nominated
by a major political party. It is constitutionally possible however. If it
ever came to pass, the party that won the ticket’s state would likely suggest
to the electors that their votes for the President go to the presidential
nominee and that the votes for the Vice President be given in honor of a party
official. Electors in all other states, as mentioned above, would be free to
vote for both of the party’s nominees.
Q102. “Much controversy is being made over the
First Amendment and religion especially in recent years. Were all the men who
wrote and signed the Constitution and the Bill of Rights Christians? If not
what other religions were there represented by this group of men?”
A. The first thing to remember is that the Bill of Rights was not written by
the Framers of the Constitution. It was drafted by
James Madison, and then edited and finalized by Congress. I cannot tell you
the religious affiliations of all of the members of that Congress. I can say,
however, that all of the Framers were either Christian or Deist. Most were
Protestant of one denomination or another. Daniel Carroll and Thomas Fitzsimons
were Roman Catholics. See the Framers
Demographics Page for more information on the Framers.
Q103. “I have heard that the U.S. Constitution is
based on a document called the ‘Iroquois Confederation’. Is this true, and if
so what parts of the Constitution came from this document?”
A. The U.S. Constitution is not based on that of the Iroquois Confederation –
but some of the delegates to the Convention knew of the Confederation (notably
Benjamin Franklin) and the two documents share many concepts, as do many
constitutions. The Five Nations was a federal-style system, and it shared that
with the U.S. You can find it online, though it is slightly difficult reading –
the Indians spoke often in concept and metaphor.
I found a copy here: The
Tuscarora and Six Nations Website.
Q104. “On what day does the electoral college
meet to cast their votes? I have heard early January, but I have also heard
December.”
A. By law it is in December: “The electors … shall meet and give their
votes on the first Monday after the second Wednesday in December…” This is
found in the U.S. Code, 3 USC 7.
Q105. “My local newspaper had an educational page
about voting that showed all the things that had been decided by one vote. For
example, it said that German was almost the official language of the U.S.,
losing by just one vote, and the Rutherford Hayes was elected President by just
one vote. Are these things true?”
A. Hayes was, indeed, elected to the Presidency by just one vote … but not
by a single vote in the popular election. The U.S. uses a system called The Electoral College to technically choose the
President. In 1876, Hayes got 185 votes in the
Electoral College, and Samuel Tilden got 184. So, he did win by one vote.
The German language thing, however, is an urban legend, helped along,
unfortunately, by popular newspaper columnist Ann Landers. The story, like so
many myths, is based on truth, but has been twisted and stretched to today’s
“German but for one vote” story. It is unfortunate the newspaper used this
example. In 1795, a vote in the Congress came up to decide whether to print
the US Code in German as well as in English. During the debate, there was a
motion to adjourn, which failed by one vote, but there is no record of the
official vote on the final measure. The full story can be found here.
While researching this Answer, I found another page that refutes several
other “one vote” stories, including that Oliver Cromwell was given control of
England in 1645 by one vote and that Adolf Hitler was made leader of Germany’s
Nazi Party in 1923 by one vote. The page can be found at Snopes.com, a site
with lots of other debunking of urban legends.
The fact that many of these stories are not true should not have any effect
on your use of your suffrage right. The ability to vote is something people in
other nations die for … do not take it for granted.
Q106. “I am unaware of the status of the Articles
of Confederation, but for the sake of argument, if my some outside chance
Canada formally asked to become part of the union, would the United States have
to honor it’s commitment under Article XI? Or is the article null and void at
this point in our history?”
A. Under the Articles of Confederation’s
Article XI, the United States made an open invitation to Canada to join the
new union as a state, admission guaranteed simply by asking. If Canada had
made such a request, the world would be a much different place today. The open
invitation, however, expired with the replacement of the Articles with the
Constitution. Canada is free to request admission into the United States, as
is any independent nation, territory of the United States, or other political
unit, under the rules laid out in Article 4,
Section 3 of the Constitution.
Q107. “Where does the C.I.A. get their power and
authority?”
A. The CIA, and a whole host of other government agencies, fall under the
Executive Branch. Their power, then, comes from the power of the President.
The job of the executive branch is to carry out the legal authority given to
it by the Legislative Branch, the Congress. So the power and authority of the
CIA comes from the legislation authorizing the creation and funding of the CIA,
from the powers delegated to it by the President and/or the Congress, and from
the prestige and respect of the agency by other parts of the government.
The same applies to every executive department or agency. From the FAA’s
power to regulate the skies over the United States to HUD’s ability to regulate
housing standards, the power comes from the people in the form of the Congress.
Congress can curtail the acts of an agency at any time with appropriate
legislation (though once an agency is established, it can be hard to disband;
and once a power is given, it can be hard to take it away).
The question also begs another: why do we even need agencies like the EPA,
the FBI, or the FDA? The following quote from Constitutional Law: Cases and
Commentary by Daniel Hall says it quite well: “… the job of governing has
become too large for Congress, the courts, and the President to handle…
Congress does not have time to make all the laws, the President to enforce all
the laws, or the courts to adjudicate all the cases… Congress is too small to
be an expert in every subject. Agencies, however, specialize and, as a result,
they possess technical knowledge and expertise in their subject areas.”
Q108. “Who has the power to declare
war?”
A. There is a short answer and a much longer answer. The short answer is
that the Constitution clearly grants the Congress the power to declare war, in
Article 1, Section 8. This power is not shared
with anyone, including the President.
The President, however, is just as clearly made the Commander in Chief of
all of the armed forces, in Article 2, Section
2. In this role, the President has the ability to defend the nation or to
take military action without involving the Congress directly, and the
President’s role as “C-in-C” is often part of the reason for that.
What this has resulted in is the essential ability of the President to order
forces into hostilities to repel invasion or counter an attack, without a formal
declaration of war. The conduct of war is the domain of the President.
These two distinct roles, that of the Congress and that of the President,
bring up the interesting and important questions: can the United States be “at
war” without a declaration of war? If we can, then what is the point of a
declaration? If not, then what do we call hostilities without a formal
declaration?
The question of the need for a declaration of war dates all the way back to
the presidency of Thomas Jefferson. Jefferson sent a squadron of warships to
the Mediterranean to protect U.S. shipping against the forces of the Bey of
Tripoli. Jefferson’s instructions to the squadron were that they act in a
defensive manner only, with a strictly defined order of battle. When a
Tripolitan cruiser shot at a U.S. ship, the U.S. forces seized the ship,
disarmed it, and released it. Jefferson’s message to Congress on the incident
indicated that he felt the acts to be within constitutional bounds. Alexander
Hamilton wrote to Congress and espoused his belief that since the United States
did not start the conflict, the United States was in a state of war, and no
formal declaration was needed to conduct war actions. Congress authorized
Jefferson’s acts without declaring war on the Bey.
Not all acts of war, however, need place the United States into a state of
war. It is without doubt an act of war to fire upon a warship of another
nation. In 1967, during the Six Day War, Israel attacked the USS Liberty, an
intelligence ship operating off the Sinai coast. But the United States did not
react as though it were at war, even though many considered the attack
deliberate (both Israel and the U.S. later determined the attack to have been a
mistake caused by the cloud of war).
It may be correct to say, then, that an act or war committed against the
United States can place the United States into a state of war, if the United
States wishes to see the act in that light. A declaration of war by the
Congress places the Unites States at war without any doubt. Absent a
declaration of war, the President can react to acts of war in an expedient
fashion as he sees fit.
Q109. “Why did Rhode Island not send delegates to
the Constitutional Convention?”
A. Rhode Island was afraid that any new system proposed by the convention
would be detrimental to its economy. Rhode Island issued lots of paper money,
and one of the aims of the convention, in the opinion of Rhode Islanders, was to
nationalize the currency (which, in fact, happened). Rhode Islanders were also
famous for (perhaps infamous for) their sense of independence and suspicious of
the calls for a stronger national government. The state was not looked upon
favorably by others, often being referred to as Rogue Island.
Despite her failure to send delegates, it was assumed that Rhode Island
would relent and ratify the Constitution, and a copy of the finished document
was forwarded to the state as it was to every state. Initially, Rhode Island
rejected the Constitution, but the reality of trying to go it alone as a
sovereign nation, surrounded by a large and populous United States, finally
convinced Rhode Island to ratify. The final vote was
close, 34 in favor, 32 opposed.
See Rhode
Island History for more information on Rhode Island.
Q110. “Does the President have the authority to
cancel the 1972 ABM treaty without the advise and consent of the senate? The
power is given to the President to make treaties with the advise and consent of
the Senate. I would think he does not have unilateral power to void a
treaty.”
A. There is some debate on the answer to this question, mostly because just
about every conceivable route has been taken. The Constitution does not address
the issue directly, so the question is, can we infer what the Constitution
would say about breaking treaties? The first argument is in your question –
that the President makes treaties, but the Senate must ratify them, so it must
be that both the Senate and the President must agree to break the treaty.
However, the President is head of state, and as such has responsibility for
conducting foreign relations, and should have the ability alone. Lastly, since
breaking a treaty can cause a major international incident, and even result in
war, a final argument says that Congress as a whole must request the breaking
of a treaty.
All of these methods have been used. Congress has unilaterally broken
treaties, the President has unilaterally broken treaties, the Senate and the
President have joined forces to break treaties, and the Congress has requested
that the President break treaties – and in some cases, the President has
refused. The safest way, meaning the way least likely to be challenged in
court, is for the President and Congress to agree that a treaty needs to be
broken and to do it together. Any other way invites controversy, though often
times such controversy is unavoidable.
For a comprehensive look at how treaties have been broken over the
centuries, refer to the Government Printing Office’s page on The
Executive, and look for “Termination of Treaties by Notice.”
Q111. “OK, I read the answer to Question 25 but I’m confused because of all the
talk of military tribunals and loss of rights for terrorists caught in
Afghanistan. What’s the deal?”
A. Your question is a the heart of many of the concerns of civil
libertarians, who see the government’s announced use of military tribunals hard
to swallow, and frightening in their use. The biggest difference, though,
between Louise Woodward and terrorists caught in Afghanistan is that the United
States is saying that the latter are combatants in a war, whereas the former
was a young woman charged with a criminal matter. Woodward was alleged to have
committed the act in the United States, was arrested in the United States, and
was, ultimately, tried in the United States. She was also acquitted (by the
judge). The terrorists are being tracked down for crimes committed or just
contemplated, to be done in the United States or elsewhere, and are being
caught and detained outside the United States. Though there are similarities,
the two classes of people (foreigners who commit crimes in the U.S. and
terrorists engaged in planning or carrying out terrorist acts) are totally
different.
Q112. “If titles of nobility are prohibited by
the constitution, why then does the U.S. Supreme Court bestow the title of
‘honorable’ to the judges that at seated there? For that matter, why do we
refer to any Judge as ‘your honor’?”
A. This question is best answered by realizing exactly what a title of
nobility is. So, go check the entry under “Title of Nobility” in the glossary first.
Then, read the following, an edited version of a comment made by a frequenter
of the message boards here:
The Supreme Court has no authority to grant any title. The terms
“honorable” and “your honor” are not titles of nobility, and are not limited to
judges. Some mayors are also referred to this way, as are other officeholders.
(It does vary among localities.) These are mere honorifics used only while the
individual holds the office, and sometimes are not used (if at all) outside of
the individual’s formal functions of that office.
With a title of nobility, a person retains the title for his lifetime, is
referred to in all social situations by the title, and passes the title on to
heirs. The title and privilege extend to all situations and it (along with the
system of nobility and royalty) is an integral part of the society.
Q113. “What is the right to privacy and where can
I find it in the Constitution?”
A. The right to privacy is not a part of the Constitution, at least not in so
many words. The right to privacy would best be seen in the 9th Amendment, which basically says that just because
a right is not in the Constitution, does not necessarily mean that it does not
exist. The justices of the Supreme Court, in several cases over the past half
century, have found that a right to privacy does exist in the Constitution, to a
degree. The cases that started the process of the “finding” of this new right
began with cases like Loving v Virginia, where it was ruled that the state
cannot prevent mixed-race marriages; and like Griswold v Connecticut, where it
was ruled that a state cannot prevent a married couple from buying and using
condoms. The first mention of a right to privacy was in a dissenting opinion in
Olmstead v US in 1928, in which Justice Brandeis argued that the Framers had
created a framework for the greatest right of all: “the right to be left
alone.”
The Supreme Court has found that this right to privacy appears in the
Constitution in several pre-existing forms. For example, the police are not
allowed to search your home or papers without a warrant, which is a direct
protection of privacy. The majority of the justices found a right to privacy in
some form, a right which could be expanded. Some justices argued that since
there is no right to privacy directly enumerated in the Constitution, such a
right does not exist. With all due respect, however, this is exactly the sort
of argument that the 9th was designed to counter. The right is far from
absolute, and many invasions of privacy, such as drug tests and the census,
have been upheld by the Supreme Court.
Q114. “I always thought that treason was the only
crime defined in the Constitution, but a friend of mine insists it is not,
though he refuses to say what the others are. Can you help?”
A. Sounds like your friend isn’t being as forthcoming as you would think a
friend would be. However, I think that your friend is confusing “definition”
with “mention.” It is certainly true that treason is the only crime that has
its minimum standard set in the Constitution itself, in Article 3, Section 3. There, treason is defined
and the standard for conviction is set. No other crime is treated so
thoroughly. However, Article 1, Section 8,
Clause 6 specifically mentions counterfeiting, which may be what your
friend is thinking of. Other clauses in that section mention much more
nebulous crimes, such as “Piracies and Felonies committed on the high Seas” and
the like.
Q115. “What is the impeachment
process?”
A. The Constitution details impeachment in Article 1, Section 2, Article 1, Section 3, Article 2, Section 3, and Article 3, Section 2. The word “details,”
however, is a bit strong for what the Constitution provides. As with many
things, the Constitution primarily gives us a skeleton of a process. The House
brings charges for impeachment. The Senate holds a trial and votes to convict
or acquit. The only way to remove a President or Vice President is through
impeachment. Impeachments are not tried by a jury. The rest of the process is
left open.
The process begins with the House. It votes on passing articles of
impeachment against a member of the Executive or Judicial branches. If the
articles pass, then it is said that the person has been impeached. The vote is
a straight up-or-down, majority vote.
After the House votes, the impeachment goes to the Senate. There, members
of the House who were advocates for impeachment become the prosecutors in the
Senate trial (they are called the House Managers). The accused secures his own
counsel. The judge is the Senate itself, though the presiding officer acts as
the head judge. In the case of a presidential impeachment, the Chief Justice
of the Supreme Court presides; in other cases, the Vice President or President
Pro Tem presides.
After all testimony has been heard, the Senate votes. If the Senate votes
to convict by more than a two-thirds majority, the person is impeached. The
person convicted is removed from office. The Senate may also prevent that
person from ever holding another elective office. The Senate may set its own
rules for impeachments, and the rules are not subject to judicial review. The
Senate has streamlined rules for trial of impeachment for persons holding lower
offices. There is no appeal in the case of conviction of impeachment.
During the threat of impeachment of President Nixon, Charles Black wrote a
book called Impeachment
which details the process even further.
Q116. “I am wondering who actually was the first
to sign the Constitution and when was it signed?”
A. The answer to the second question can be found quite easily by checking the Constitution itself. The answer to the
first question is actually a little harder to determine. An image of the last
page shows the signatures of the conventioneers, and though that of George
Washington is at the top, that does not mean that he signed first. He signed
his name as “President and deputy from Virginia,” so maybe he signed when the
others from Virginia signed. The signature of William Jackson, the secretary of
the convention, is also prominent. That of George Read is first in the left hand
column, and John Langdon is first in the right hand column. The point is,
looking at the document is not the best way to determine who signed first.
The best secondary source of information would be the Minutes taken by
James Madison. But Madison’s notes on this day, on this particular issue, are
scant: “The members then proceeded to sign the instrument.”
The next best source would be other papers or letters written by anyone at
the Convention. Unfortunately, I do not have access to great resources in this
area. I would call on anyone with such access to let me know if my final
conclusion is rendered incorrect by any such paper.
The last source of information is books about the Convention. There are
many, of which I have a few. After consulting with them, some merely parrot
Madison’s words, some note that the delegates signed in order of state, and one
notes that Washington signed first. The authors of these books that did not
state one way or the other are all correct, and the one that states that
Washington signed first is providing an opinion based on reasonable
deduction.
Using some reasonable deductions of my own, I’ve concluded that Washington
signed first. The fact that his signature is at the top of the lists of names
is one particularly telling fact. The respect that the conventioneers had for
Washington as both a person and as the president of the convention is another
indication that he would have been asked or have been expected to sign first.
It is reasonable, then, to say with as much certainty as possible, that George
Washington signed the Constitution first.
Q117. “How did the President’s Cabinet get its
name?”
A. Like many parts of the American political system, the idea of a cabinet
was borrowed from Great Britain. Hundreds of years ago, the word cabinet
referred to a small room, no bigger than a cabinet, that was located near the
private rooms of the king or queen. The monarch’s advisors would be brought to
the cabinet for confidential discussions about the empire. The most trusted
advisors visited the cabinet most often. They came to be called the cabinet
counsel, or simply, the cabinet (source).
Q118. “I remember reading that if the citizens
are unhappy with the way the Government is running the country they can choose
to, I don’t know how to put it but, basically remove all members & then
reoccupy with newly appointed members. I’ve been reading the site for a little
over an hour and haven’t found anything hinting towards this.”
A. The notion is built into the regular elections that we have. Within six
years, all of the elected members of the government can be rotated out. The
entire House of Representatives is reelected every two years; the President and
Vice President (and hence the Cabinet) every four years, and one third of the
Senate every two years. If there was a concerted effort to replace the members
of the government, starting now, we could have a new House, one third of a new
Senate, and a new President at the beginning of 2005. In 2007, two-thirds of
the Senate, and by 2009, a whole new Senate. The judiciary is harder, since
they serve for life.
That’s the constitutional means. The Constitution is based on the assent of
the governed. If the governed, the people, decide to replace the Constitution,
that is certainly possible at any time.
Q119. “‘Lost Cause’ revisionists claim that the
Fourteenth Amendment was a hatchet-job, illegally
passed, and, therefore, quite unconstitutional. Can you help me answer this
charge?”
A. Lots of people, for whatever reason (Lost Cause
supporters or not) think that the 14th was illegally passed. The surest answer
to the charge is that the amendment could have been challenged any time since
1868, and was not. The admitted blackmail that the United States exerted on the
former Confederate states to ratify the 14th may have been questionable, but it
is undeniable that the states all ratified it. There is also nothing in the
Constitution that says that states or the federal government cannot exert
pressure on another state to ratify an amendment. Again, the tactics may have
been questionable in several cases, but not unconstitutional.
One argument is that some states rescinded ratification after they ratified
and before full ratification. This has been the subject of some debate, but
there has been a general constitutional argument that once a state ratifies an
amendment, it cannot be unratified. Some focus on Ohio and New Jersey, which
rescinded prior to July 9, 1868, the official date of ratification. However,
Alabama, Georgia, and Virginia all ratified within a few months – even if these
rescissions counted, which is debatable, the ratifications by Alabama and
Georgia would have been enough to meet the requirement. The latest, then, the
amendment could have been seen as ratified is July 21, 1868 instead of July 9,
1868.
Of course, at the time, the rescissions of the Ohio and New Jersey were
noted, and rejected as invalid. The Secretary of State and Congress of the
time listed both as having ratified and were included in the list of ratifying
states. Now, these facts may not bolster your argument, but they do give you
information that the other side will probably try to use. The other key point
to note is that the Supreme Court has had, literally, hundreds of opportunities
since 1868 to rule that the 14th is not a valid amendment but, indeed, it has
used the 14th to greatly expand the protections of the people from government
intrusion on civil rights.
Q120. “Since it is true that the president must be
a naturally born citizen, does the vice president also have to be a naturally
born citizen?”
A. The Vice President has the same qualifications as the President – if you
cannot be President, you also cannot be Vice President. This is specified
in the last sentence of the 12th Amendment.