you aren't reading anything in to the constitution
I would love to set up a mock trial and let people who are convinced that it's easy to interpet the Constitution sit on a mock jury and take a whack at it. I am sure that on a 12 person jury, you would get at least half a dozen takes on any one of the Bill of Rights, if not 12.
One of the reasons I am so sure is that I've read about how, when people are polled about whether they believe in this or that provision in the Constitution, the vast majority says no. Which means, to me, that they have no idea what the Constitution actually says, or means.
Which is nothing to be ashamed of. Even the men who wrote the Constitution could not agree about what it meant. The main contributors to the Federalist Papers could not even agree about what the Constitution meant.
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>>Startling Lack of Constitutional Knowledge Revealed in First-Ever National Poll
A 1997 NCC poll found that only 5 percent of Americans can correctly answer 10 rudimentary questions about the Constitution. The first-ever comprehensive survey of constitutional knowledge, the poll was commissioned by the National Constitution Center (NCC) at the start of Constitution Week 1997, September 17-23. Highlights include:
* more than half of those polled do NOT know the number of US Senators;
* only 6% can name all four rights guaranteed by the First Amendment.
* 1 out of 6 believe that the Constitution establishes America as a Christian nation;
* 84% incorrectly believe that the Constitution states that "all men are equal".
constitutioncenter.org
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>>Things that are not in the U.S. Constitution
A lot of people presume a lot of things about the Constitution. Some are true, some are not. This page will detail some of the things that people think are in the Constitution, but are not.
* Congressional Districts
* The Electoral College
* Executive Order
* Executive Privilege
* Impeachment means removal from office
* Innocent until proven guilty
* Judicial Review
* Jury of Peers
* Life, Liberty and the Pursuit of Happiness
* Marriage
* No taxation without representation
* Number of Justices in the Supreme Court
* Of the people, by the people, for the people
* Political Parties
* Qualifications for Judges
* The right to privacy
* The right to travel
* The right to vote
* The separation of church and state
* Slavery
* Other topics
Innocent until proven guilty
The concept of the presumption of innocence is one of the most basic in our system of justice. However, in so many words, it is not codified in the text of the Constitution. This basic right comes to us, like many things, from English jurisprudence, and has been a part of that system for so long, that it is considered common law. The concept is embodied in several provisions of the Constitution, however, such as the right to remain silent and the right to a jury.
The right to privacy
The Constitution does not specifically mention a right to privacy. However, Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. The right to privacy has come to the public's attention via several controversial Supreme Court rulings, including several dealing with contraception (the Griswold and Eisenstadt cases), interracial marriage (the Loving case), and abortion (the well-known Roe v. Wade case). In addition, it is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd, the 4th's search and seizure limits, and the 5th's self- incrimination limit.
The separation of church and state
The phrase "separation of church and state" does not appear anywhere in the Constitution. Thomas Jefferson wrote that the 1st Amendment erected a "wall of separation" between the church and the state (James Madison said it "drew a line," but it is Jefferson's term that sticks with us today). The phrase is commonly thought to mean that the government should not establish, support, or otherwise involve itself in any religion, though it is more accurate to say that the 1st Amendment prohibits the government from establishing a national religion, and protects the individual's right to worship, or not worship, however the individual sees fit.
Thanks to Pat Roche for the idea.
Impeachment means removal from office
The word "impeachment" and the phrase "removal from office" are not synonymous. For a President, judge, or other federal official to be removed from office against their will (because resignation is always an option), they must be impeached. Impeachment consists of three phases - the passage of the impeachment by the House, a trial by the Senate, and the imposition of a penalty if the Senate convicts. For members of the executive branch, removal from office is automatic upon conviction. The Senate may also decide to prevent the person from holding any other public office (see Article 2, Section 4). For any other impeachable officer (including judges), there are basically two punishments, which gives them four options: they can do nothing; they can remove the person from their office; they can prevent the person from ever holding any office in the federal government again, or both (see Article 1, Section 3).
Executive Privilege
Nixon asserted that the Constitution granted him the absolute right of executive privilege, or the ability to withhold information from the press, the public, the Congress, and even the courts. The Supreme Court disagreed, though it did recognize a limited degree of privilege. Those limits have to do with military or diplomatic secrets - but even then, the information in question could be reviewed for relevancy. (See 418 U.S. 683 (1974)) Some argue that executive privilege is a myth; it certainly is not codified in the Constitution. The truth is likely that though there is no specific mention of privilege in the Constitution, the Framers would have been comfortable with the definition the Court has set down.
Thanks to Pat Roche for the idea.
Life, Liberty, and the Pursuit of Happiness
This phrase is commonly attributed to the Constitution, but it comes from the Declaration of Independence.
Of the people, by the people, for the people
This phrase is commonly attributed to the Constitution, but it comes from the Gettysburg Address.
Thanks to James Bishop for the idea.
The Right to Vote
The Constitution contains many phrases, clauses, and amendments detailing ways people cannot be denied the right to vote. You cannot deny the right to vote because of race or sex. Citizens of Washington DC can vote for President; 18-year-olds can vote; you can vote even if you fail to pay a poll tax. The Constitution also requires that anyone who can vote for the "most numerous branch" of their state legislature can vote for House members and Senate members. Note that in all of this, though, the Constitution never explicitly ensures the right to vote, as it does the right to speech, for example. This is precisely why so many amendments have been needed over time - the qualifications for voters are left to the states. And as long as the qualifications do not conflict with anything in the Constitution, that right can be withheld. For example, in Texas, persons declared mentally incompetent and felons currently in prison or on probation are denied the right to vote.
Thanks to Roy Neale for the idea.
Judicial Review
We often hear about the Supreme Court striking down a law or a provision in a law, or, more often, reaffirming some law or provision. Take a look in the Constitution - judicial review, as this is known, is nowhere to be found. It seems like a perfectly normal action - after all, what kind of check does the Judicial Branch have on the other two branches if laws and orders cannot be declared unconstitutional. But judicial review is not specifically mentioned. So how did judicial review come to be? In the landmark case of Marbury v. Madison (1803), Chief Justice John Marshall declared a federal law, the Judiciary Act of 1789, to be unconstitutional, and thus null and void. This was the first time a Supreme Court ruling overturned a law.
Thanks to Spooky for the idea.
Political Parties
Political parties are such a basic part of our political system today, that many people might assume the Constitution must at least mention parties in one way or another... but there is absolutely no mention of political parties anywhere in the Constitution. In fact, in the times of the Articles of Confederation, there weren't even any parties; factions, perhaps; regional blocs, yes; but no parties. Not until the Jackson and Van Buren administrations did organized parties really take hold in the American political system.
Thanks to Lois for the idea.
Congressional Districts
Congressional Districts divide almost every state in the United States into two or more chunks; each district should be roughly equal throughout the entire country. Each district elects one Representative to the House of Representatives. The number of districts in each state is determined by the decennial census, as mandated by the Constitution. But districts are not mentioned in the Constitution. The United States Code acknowledges districting, but leaves the "how's" to the states (gerrymandering, however, is unconstitutional [as seen in Davis v Bandemer, 478 U.S. 109, though, the intent of gerrymandering is difficult to prove]).
Thanks to Marko Liias for the idea.
The Right to Travel
As the Supreme Court notes in Saenz v Roe, the Constitution does not contain the word "travel" in any context, let alone an explicit right to travel. The presumed right to travel, however, is firmly established in U.S. law and precedent. In U.S. v Guest, the Court noted, "It is a right that has been firmly established and repeatedly recognized." In fact, in Shapiro v Thomson, Justice Stewart noted in a concurring opinion that "it is a right broadly assertable against private interference as well as governmental action. Like the right of association, ... it is a virtually unconditional personal right, guaranteed by the Constitution to us all." It is interesting to note that the Articles of Confederation had an explicit right to travel; it is now thought that the right is so fundamental that the Framers may have thought it unnecessary to include it in the Constitution or the Bill of Rights.
Thanks to Marko Liias for the idea.
Executive Orders
Executive Orders have two main functions: to modify how an executive branch department or agency does its job (rule change) or to modify existing law, if such authority has been granted to the President by Congress. Executive orders are not mentioned by the Constitution, but they have been around a long, long time. George Washington issued several Presidential Proclamations, which are similar to EO's (Proclamations are still issued today). EO's and Proclamations are not law, but they have the effect of statutes. A typical modern Proclamation might declare a day to be in someone's honor. Historically, they have had broader effect, such as the Emancipation Proclamation. A typical EO might instruct the government to do no business with a country we are at war with. Executive orders are subject to judicial review, and can be declared unconstitutional. Today, EO's and Proclamations are sequentially numbered. The average president issues 58 EO's a year. As of March 13, 1936, all EO's must be published in the Federal Register. The first to have been so published was #7316, by President Roosevelt.
Thanks to Richard Barr for the idea.
Number of Justices in the Supreme Court
Article 4 specifies that there will be a Supreme Court, Article 1, Section 3 alludes to the Chief Justice, and Article 2, Section 2 alludes to the "Judges of the Supreme Court", but aside from these small mentions, the make-up of the Supreme Court is not defined in the Constitution. There will be a Supreme Court, there will be a Chief Justice, and there will be other Justices - but how many? Originally, there were six members, and the number has fluctuated up to as many as ten. In 1869, the number was set in the law at nine, and it has remained at nine ever since. The number of justices is now set in the U.S. Code at 28 USC 1.
Thanks to Dulce Siochi for the idea.
Qualifications for Judges
Article 1, Section 2 specifies the qualifications to be a Representative, Article 1, Section 3 specifies those for Senators, and Article 2, Section 1 those for President. The 12th Amendment adds the Vice President. But no where does the Constitution specify how federal judges are to be qualified. There is no minimum age and no residency requirement. The primary reason for this is that the Framers were well aware of how judges became judges - they were appointed because they excelled at the law. To do that, you must have had at least a minimum of knowledge in the law (though in the 18th and 19th centuries, lawyers were often self-taught).
Thanks to Marko Liias for the idea.
No taxation without representation
The battle cry "No taxation without representation!" was a great political slogan coined to counter the Sugar Act of 1764. In order to help recoup the debt it incurred during the French and Indian War (or the Seven Years' War), the British Parliament passed the act, which taxed all manner of foodstuffs imported into the colonies. The Americans, in the midst of economic depression following the war, were not particularly enamored of a new tax. Some have written that the Americans were simply whining tax evaders. The slogan was good for rallying the troops with an easy issue for every one to discern: that since they were not represented in Parliament, the tax should not be levied. However, the ultimate goal of most of the agitators was not representation in Parliament, but independence. The concept of "no taxation without representation" may be present in general in the United States. But those who are unrepresented (such as convicts and immigrants who cannot vote) are still subject to taxation.
Thanks to Ntech for the idea.
Slavery
Originally, the Framers were very careful about avoiding the words "slave" and "slavery" in the text of the Constitution. Instead, they used phrases like "importation of Persons" at Article 1, Section 9 for the slave trade, and "other persons" at Article 1, Section 2 for slaves. Not until the 13th Amendment was slavery mentioned specifically in the Constitution. There the term was used to ensure that there was to be no ambiguity as what exactly the words were eliminating. In the 14th Amendment, the euphamism "other persons" (and the three-fifths value given a slave) was eliminated.
Thanks to ches04 for the idea.
The Electoral College
The concept of presidential electors is certainly in the Constitution, but never is the group of people collectively referred to as "The Electoral College." Article 1, Section 2 speaks of "Electors," as do several of the Amendments, but never the college itself. The term comes from common usage in the early 1800's, in the same way that the "College of Cardinals" elects a pope, and is based on the Latin word collegium, which simply refers to a body of people acting as a unit. The "College of Electors" is now used in U.S. law, at 3 USC 4. For more on the Electoral College, see the topic page.
Jury of Peers
People often say "I have a right to have my case heard by a jury of my peers!" when there is no such right in the Constitution. The Constitution does take up the issue of juries, however. It is the nature of the jury which is not in the Constitution. In Article 3, Section 2, the Constitution requires that all criminal trials be heard by a jury. It also specifies that the trial will be heard in the state the crime was committed. The 6th Amendment narrows the definition of the jury by requiring it to be "impartial." Note that no where is a jury "of peers" guaranteed. Strictly speaking, it could be prohibitively difficult to gather juries of peers - the definition of a "peer" would have to worked out. Is a peer someone of the same age, sex, race, religion, class, standing, or profession? Fortunately, juries need only be impartial, and not of one's peers, else the jury system would be unworkable.
Thanks to James Bishop for the idea.
Marriage
In 2004, a lot of controversy began to swirl around the topic of marriage as homosexual marriage entered the news once again. In 1999, the Vermont Supreme Court ordered that the state must make accommodations for gay unions, bringing the issue into the public eye. Vermont created civil unions as a result. In 2004, the Massachusetts Supreme Court went a step further, and ruled that the state must accommodate not just an institution equal to marriage, as civil union was designed to be, but that gay marriage itself must be offered in the state. Subsequently, mayors in New York and California to offer gay marriage in their towns and cities, citing civil rights concerns. Those opposed to gay marriage began to urge that an amendment to the Constitution be created to define marriage as being between a man and a woman only. Opponents of the amendment pointed to the failed Prohibition Amendment as a reason why such social issues should stay out of the Constitution. In the absence of any such amendment, however, marriage is not mentioned in the Constitution at any point.
Other topics
I get a lot of notes from people with topics not in the Constitution. I expand on suggestions as time permits. Before time permits, here is a bullet-list of the topics that have been sent to me, each of which I hope to eventually add a few notes about:
* Constraints on the people Thanks to Robert Dawes
* Education Thanks to KateAlways
* Student, Animal, Gay, Lesbian Rights Thanks to Jim King
* "God," "Creator," or any other name for any deity Thanks to James MacDonald
* The word "democracy" Thanks to GovCo
* Abortion Thanks to Rosie23499
* Age discrimination Thanks to BGShore
* "It's a free country" Thanks to John Powers
* Capitalism Thanks to Dan Harrison
usconstitution.net |
