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Answers From the FAQ, Page 1

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.

Q1. "...a friend of mine, another college student at a different university, is a political science major. He was told by several 'reliable sources' that voters under the age of 21 do not actually vote for the President. He was told that we 18-year-old voters only participate in the election of Legislators. Also, all the hype to get teenagers to exercise their right to vote just 'conveniently overlooks' and neglects to point out the fact that our votes don't count in the Presidential election. Now, I strongly doubt these assertions, but the quality of the sources have led me to try to find textual proof of the claims."

A. The only way you could think that 18-year-olds do not vote for the President is if you stopped reading the Constitution before you get to the 26th Amendment. Oddly enough, the main body of the Constitution does not actually set an age at which people could vote. This was intentional, so that the States could set their own voting ages and other qualifications. However, the 14th Amendment does mention a voting age, for all men, of 21. This is expanded upon in the 15th Amendment (voting for all races) and the 19th (voting for women).

The 26th Amendment, however, is very clear: no one 18 or older shall be restricted from voting on account of age. It does not restrict this to Presidential elections, or any other kinds of elections. It applies to all elections.

One further point to clarify: when you vote in the Presidential elections, you are not actually casting your vote for the President, but for an elector who will vote for the President. This idiosyncrasy of the U.S. system is known as the Electoral College, and this site has a page devoted to that topic.

Q2. "[I] am trying to find out if presidential elections are held during war?"

There is nothing in the Constitution that addresses this question directly, which essentially means that elections must be held as spelled out elsewhere (Article 1, Section 2, Article 1, Section 3, Article 1, Section 4, Article 2, Section 1, and Amendment 17). We can also look at history and see that elections have been held many times during wars, both declared and undeclared: 1812 (War of 1812); 1864 (Civil War); 1900 (Philippine-American War); 1944 (World War II); 1952 (Korean War); 1964, 1968, 1972 (Vietnam War); 2004 (Second Gulf War). A list of all election results is available at this site.

Q3. "Do you know of a site in which to download a 'clean' copy of the constitution?"

A. Well, I'm not sure what you mean by a "clean" version - maybe a version with no HTML in it, just the text? There is one on this site in a pure text format. Use it however you wish.

Q4. "I was looking for what the Congress is prohibited from doing."

The Constitution doesn't so much say what they can't do as it does what they can. If you think about it, this restricts the Congress a lot more than if it spelled out what it is prohibited from doing. For info, see Article 1, Section 8; this is a list known as the "enumerated powers." The Commerce and Elastic clauses of that Section have ended up providing Congress with some relatively wide latitude in its application of power. However, Article 1, Section 9 does spell out some very specific things the Congress is prohibited from doing.

Though the intent of the Framers was to provide as little power as necessary to Congress, many felt that the lack of specificity would lead to power grabs. Within a few years of the ratification of the Constitution, these fears found their way into the Constitution in the form of the Bill of Rights. The first eight amendments restrict the powers of Congress much more specifically, explicitly, for example, restricting the power of Congress to regulate free speech.

Q5. "What do you believe are the reasons why the Constitution would not have been passed without the Bill of Rights."

A. Actually, the Constitution did pass without the Bill of Rights, as the first ten amendments are commonly known. The Constitution was ratified in 1788. Amendments 1-10 were adopted in 1791.

Q6. "During class today, we were discussing Amendment 15. Is it true that it will expire in the year 2008?"

A. There is no expiration date on the 15th Amendment. Don't worry, the right of citizens to vote regardless of color is safe. Unfortunately, people are hearing the myth of the "Expiring Right to Vote" and spreading it as if it was true.

The rumor is that the 15th Amendment would expire in 2007 or 2008. The origins of this rumor appear to stem from the enforcement arm of the 15th, the Voting Rights Act. The Act was passed in 1965. Certain portions of the Act, which allow the federal government to take special actions against jurisdictions that refused to enact the Act, are considered temporary and were to have expired, but have been extended several times; under President Reagan, the provisions were extended for 25 years in 1982, and under President Bush, they were extended for another 25 years in 2006. If, in 2031, these special actions are allowed to expire, it will likely be because no one deems them necessary any longer. If they do expire, and a court decides they are required once more, a court order can place them back into effect. This "expiration date" notwithstanding, the 15th Amendment is still in place. For more information, see the Department of Justice site.

Q7. "Do you know the Author of the Preamble of the Constitution and how it was received by the delegates?"

A. The entire Constitution was written over the course of about six weeks in draft form. At that time, it was turned over to a style committee for its final language. This committee was headed by Pennsylvania's Gouverneur Morris. Since the proceedings of the Style Committee were not recorded, though, I'm not sure we can say with certainty if any one man proposed the words of the Preamble, or if it was devised and revised by the whole committee. See the topic page on the Constitutional Convention and the Convention Timeline for more information.

Q8. "I desperately need information on what the constitution may or not say about capital punishment, and the use of it."

A. The Constitution does not address the subject directly. The 5th Amendment says:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;...

The term "capital" varyingly means a crime punishable by death and a very serious crime (but, perhaps, not punishable by death). Here, the distinction is not very important (any court would likely take more liberal of the two). Basically, you can't be held unless indicted.

The 5th Amendment continues:

...nor be deprived of life, liberty, or property, without due process of law;...

In lay-man's terms, this means that you may not be executed, jailed, or have property taken or withheld without proper indictment, trial, and conviction. The 14th Amendment extends this restriction to the states.

The only other place the death penalty is (indirectly) dealt with is in the 8th Amendment - no cruel and unusual punishment. The definition of what is cruel and unusual is very flexible - what is cruel in our society is not in others; what is cruel now may not have been 50 years ago or 50 years from now. In 1972, most death penalties were thrown out by the Supreme Court en masse, though in 1976 the Court said that many death penalty laws, revised to come into line with the concerns expressed in the 1972 ruling, were constitutional. Today, constitutional challenges of the death penalty based on the premise that they are cruel and unusual don't win very often, and only rarely does the Supreme Court directly intervene in pending death warrants.

Q9. "I know the order of power in the event of the death of the president is the V.P., then the speaker of the house. Where does it go from here?"

A. The Constitution actually only provides for the Vice President to succeed the President. The Constitution, in Article 2, Section 1 and Amendments 20 and 25, basically says that aside from the VP, the line of succession is by law. The exact order is in the U.S. Code, specifically 3 USC 19. Right now, the order is Speaker of the House, President Pro Tem of the Senate, then the members of the Cabinet (in the order the agencies were added).

This question has only been around since the cold war. Prior to the 25th Amendment, there was no procedure in place for replacing a vacant Vice Presidency, and, in fact, all Vice Presidents who succeeded a dead President served out the term without a VP; and each time a VP died, the President served without a backup. The Framers either never thought of the need for a double succession, or thought the odds that the VP who becomes president would then die were pretty slim. The 1792 Succession Act did provide for the Presidency to be taken by the President Pro Tem of the Senate, then by the Speaker of the House. In 1886, these individuals were replaced by the cabinet secretaries, and in 1947, the Congress placed the Speaker and President Pro Tem at the top of the order.

The 25th put the matter to rest - with the prospect of Washington D.C. being melted in a nuclear fire, and most of the legislative and executive branch turning to ash in a split second, the line of succession became more important.

See the Line of Succession Topic Page for even more information.

Q10. "I need to know how many articles and amendments are related to economics in the Constitution?"

A. Depends on what you mean by economics. The Constitution doesn't say, for example, that the budget needs to be balanced or how much any one in government is to be paid (except to say that Senators and Representatives are to be paid out of the public funds, and that the President and Judges and Justices will also be paid. [interestingly, there is no mention that the Vice President should be paid!]). As a side note, the pay of judges may not be diminished during their time on the bench, but the President's pay may not be raised or lowered during his time in office.

Some other examples are: that all revenue bills are to originate in the House; that Congress can lay taxes and borrow money; to coin money, etc.; that a tax on slaves may be imposed.

Q11. "Can tabloids be restricted constitutionally? I don't mean censor, but can government label tabloids as they label records with explicit lyrics?"

A. First, it should be clarified that the government does not rate movies, nor does it rate music, television, or video games. All of these media are rated by their industries themselves. Movies are rated by the MPAA, and theaters follow the MPAA rules because it is their industry (in other words, there is no federal law that defines what an "R" rating is, nor that tells theaters how to handle R-rated movies). Likewise, the RIAA and record companies rate music. Each broadcast or cable network rates its own television shows, and the TVPGMB monitors the ratings. Video games are rated by the ESRB. Though the government has mandated that TV's contain V-Chips to allow parents to control access to rated programming, the rating is still done by a non-governmental agency.

You can see the MPAA, RIAA, TVPGMB, and ESRB web sites for information on ratings.

With that having been said, it really does not matter if the government rates movies, music, video games, and TV or not. The press is a special case, getting specific mention in the Constitution, and its freedom to publish has long been upheld. A Warning Label? Maybe, but it might have the opposite desired effect - do you choose R-rated movies, generally, over PG-rated ones?

Q12. "Can Congress set up an ethics committee to separate hard journalism from tabloid journalism?"

A. I'm certain that such a proposal would A) never pass and B) would be declared unconstitutional immediately (assuming it had any regulatory power). It would never pass because every news agency, newspaper, TV station, the ACLU, and freedom of speech advocates from every corner would oppose it. Assuming this was more than just a review board (i.e., it had power to punish or pull papers, or whatever), it would be taken straight to the Supreme Court and declared unconstitutional that day.

Of course, there's nothing to stop one from amending the Constitution to allow for such review...

Q13. "I believe that gambling should be legalized in every form. Do you think that the ninth amendment of the constitution supports this claim, and why?"

A. Is your argument that just because the right to gamble is not enumerated in the text of the constitution is not to be taken to mean that you do not have a right to gamble?

In theory, gambling is legal in every form... except where prohibited by local law. So says the 10th amendment - the power to regulate gambling, not given to the Federal Government, is granted to the states.

Prior to the 14th amendment, the Bill of Rights had no power over States (in other words, a State could have taken away your right to free speech or to own a gun, assuming such an act did not violate the state's own constitution), but since the 14th amendment, most rights reserved for the people by the Constitution have been found to apply to the states, too, through a process known as incorporation. So, if you can come up with a valid reason why gambling is, say, a form of protected speech or assembly, then you might have a case. But the Constitution of the U.S. and those of the states often include provisions for the government to look after the general health and welfare of the people; the potential for abuse of gambling may give the state compelling reason to prohibit it.

For more information on the Bill of Rights and incorporation, see the Bill of Rights Topic Page.

Q14. "I think that the right of eighteen-year-olds to vote must be repealed. Do you know anywhere I can find some information that would help me?"

A. What is the basis of your argument? Personally, I don't agree with the argument, but you may have some convincing facts (or are you looking for convincing facts?) that I'd like to hear. My take on it is that since eighteen-year-olds can pay taxes and can join the military, they should be able to vote.

You should know that the repeal of this amendment has been proposed, but it would be replaced by one that grants the right to 16-year-olds. My take on this is that since 16-year-olds can have their income taxed, it seems reasonable that they should be guaranteed the vote. (Note that nothing in the Constitution prevents a state from allowing people under 18 the right to vote; the 26th merely sets a threshold.)

Q15. "When the 26th amendment was being considered, why did the Congress settle on 18 as the minimum age? Why not 17 or 16?"

A. To be sure, you'd have to check the Congressional Record to read the debates. I'm not sure they are on-line, especially for that period of time, but if not, then any library should have the Record.

I suspect the most likely reason for picking 18 is that, at that time, in the early 70's with the Vietnam War in full gear, it was the opinion of the Congress that anyone old enough to be sent off to kill and be killed in a war for the U.S. is also old enough to vote on the people who would make such policies.

As noted in Question 14 above, the Constitution is merely setting a threshold, a bottom limit in age over which all persons must be allowed to vote. If a state wishes to allow the vote for 16- or 17-year olds, it has the ability to do so, for any election, local, state, or national.

Q16. "I have been on the net for about an hour reading all I can find about informal changes which have occurred in the Constitution during the last 200 years. Which kind of change, formal or informal, have been most important in our history?"

A. An "Informal Change" or "Informal Amendment" to the Constitution is one where the interpretation of the Constitution is changed by a Supreme Court ruling, rather than by a formal constitutional amendment.

There are some truly momentous Supreme Court decisions in our history - Marbury v Madison, Dredd Scott, Miranda, Brown v Board of Education, Roe v Wade. Recently, I find FCC v Pacifica (1978) fascinating, Hustler v Falwell (1988) is also interesting, and Webster v Reproductive Health (1989) is interesting in what it could have been but wasn't.

For example, in the Plessy v Ferguson, the Court ruled that blacks and whites could have separate public facilities, including schools, as long as those facilities were equal. This "separate but equal" interpretation of the 14th Amendment was overthrown by the Brown v Board ruling that declared the separate but equal theory unconstitutional.

In the more "formal" arena, the Bill of Rights have a tremendous effect on Americans' every days lives. Aside from these first ten amendments, I think the 14th amendment is one of the biggest.

Q17. "Beyond the Bill of Rights, few Constitutional amendments have radically altered the American system of government. Slavery was actually abolished by warfare, rather than legislation. In all probability a new Supreme Court majority would have authorized the graduated income tax. Senators were actually chosen by the people long before the amendment was passed; women would today have the vote, Nineteenth Amendment or no. Is this analysis valid? Can you find further evidence to make this point? Can you think of evidence that contradicts this thesis?"

A. I think that this analysis has merit, but I don't think it is completely valid, either. Just to use the examples in the question:

The point about slavery is probably partially right, though even the Constitution was a beginning of a change to the way the U.S. handled slavery - after a certain date, no new slaves could be "imported" to the U.S. (Article 1, Section 9, Clause 1). All new slaves had to be naturally born into slavery. It may not seem like much of a step forward, but it was. And one catalyst for the Civil War may have been slavery, but it was so much more than that. The 14th amendment, with its due process of law clause, has been one of the most influential pieces of legislation this nation has seen, aside from the original Constitution and Bill of Rights itself. Without the abolition of slavery written into law, it could easily have cropped up again in either the deep south or some of the new south western states.

If the income tax had not been codified into the Constitution, it is likely that a future Court might have allowed an income tax (in fact, one was passed around the time of the Civil War, but never really implemented). But, when the tenure on the bench changed and the national appetite for taxes went sour, it would have been struck down again. I'm not saying that I like the income tax (God knows!) but without an amendment, it would have been passed and challenged and overturned and affirmed.... what a mess.

Senators may have been chosen indirectly by the people in some states, but the fact remained that the power to choose Senators was in the hands of the state legislatures, and not the people. The 17th amendment made sure that the power to choose senators was in the hands of the people, and not some state legislature or executive branch. It brought a small measure of democracy to the people that the original framers didn't think we could handle.

And lastly, I think that women's suffrage was the genesis of equality among the sexes, rather than women's suffrage being an inevitable part of some burgeoning equality among the sexes. Though the Constitution itself never says that women cannot vote, the 14th amendment extends the right to vote to all males, 21 or over. I don't think that a state would have been prevented from allowing women to vote, but I don't think that women bringing a state to court could have compelled that state to let them vote, either. And with legislators in such a state elected by men, there would have been a clear conflict in any efforts to grant suffrage. A national mandate, a constitutional amendment, was the only way to go about this.

Now, it is true that many of the later amendments have had little practical effect on everyday life - the line of succession to the presidency or the two-term limit, or even the right of D.C. citizens to vote has little effect on Everyman. But there are two points - first, the Constitution is a mature document. Right now, we are fine tuning it to fit new situations and our evolving society. Second, the most sweeping changes lately have not been in the Constitution itself, but in its interpretation. The cases of the past 50 years, Brown v Board, Bakke, Miranda, FCC v Pacifica, Roe v Wade, etc., have been turning points in our societal, judicial, and legislative history.

Q18. "I would like a short list of other countries which have used our Constitution as a blueprint for theirs."

A. I've read that all constitutions since ours was adopted have been influenced by ours in some way. I guess I'd like to see that quantified.

You can see a lot of influence in state constitutions, where a lot of verbiage is pulled right out of the national constitution. I recently read parts of the Alaska Constitution, and some of that is almost direct quote. Vermont's, on the other hand, which was originally written prior to and concurrently with the U.S. version, has very little similarity in wording. The Constitution of the Confederate States of America is also very similar.

I know of no other national constitutions that lift directly from ours, but we have had a hand, direct or indirect, in several. First is Liberia's, founded by American slaves. Their Constitution of 1847 has several similarities with our Constitution, but deviates from it on key points. Next, Japan's Constitution of 1947, which General Douglas MacArthur had a heavy hand in, has many clauses that mirror those in our Constitution, though it set up a parliamentary legislature and executive. Lastly, the Philippines, which established a constitution in 1899 when it became a commonwealth of the U.S., though their constitution has changed several times since then.

Q19. "In Article 2, Section one, it states that someone can be president if they 'have been a 14 years resident within the United States.' Also, in Article 1, Sections 2 and 3, it states the years of residency necessary to be a Senator and within the House of Representatives. Are all of these years (14 years, 7 years, and 9 years) consecutive, or are the years totaled together, if one has been in and out of U.S. residency throughout his or her life? Does this include time spent out of the country before the electee reached age 18?"

A. Actually, a Representative need have been a citizen for seven years, and a Senator a citizen for nine. It does not mention time of residency for either, only that you be a resident of the state you're running in.

For President, you need to either be a natural-born citizen of the U.S., or a non-natural citizen as of the passage of the Constitution (those people are all dead now). You can read more on the intricacies of what exactly "natural-born" means on the Citizenship Topic Page. The one other qualification is, as you note, the need to have been a resident for 14 years. This was designed to ensure that a person running for President have some sort of physical tie to the country. It was not enough to have been born here and then left, gained popularity overseas, and return for a triumphant election to the Presidency.

But even this seemingly simple requirement is subject to two possible interpretations. The first is that residency must be consecutive, meaning that before assuming the office of president, a person must have lived within the United States for fourteen straight years. The second is that the fourteen years can have been arrived at cumulatively. There are problems with both interpretations.

As to the latter interpretation, if a child of 14 years leaves the U.S. and returns at the age of 50, the person would be eligible to be president, because the 14 years were accumulated at the beginning of the child's life. Was this the Framers' intent?

As to the former interpretation, the requirement could disqualify many people, including those doing diplomatic or military service, or those doing business outside the country. Though the law can make exceptions for national service, it seems unlikely that the Framers would have wanted to disqualify a business person who lived overseas for a short time a dozen years ago.

Fortunately, we have precedent to help resolve the question. Herbert Hoover was elected to the presidency in 1928 and inaugurated in 1929. If the "consecutive" interpretation were correct, Hoover would have had to live in the United States since March, 1915. Hoover, however, lived in London, England, during that time frame. The Court Directory of London listed a London address for Hoover from 1910 to 1917. If, therefore, the "consecutive" interpretation is not the correct one (or, at least, is disproven by precedent), only the "cumulative" interpretation remains.

Q20. "How old must the VP be? If the VP is less than 35 and the President dies and the VP is sworn in as President, who determines if he is eligible for the office?"

A. The age of the Vice President is not specified in the original version of the Constitution, but the method of selecting the Vice President was clear: the VP was the person who came in second. So, to come in second you had to have been running for President, and you therefore needed to be at least 35.

Today, the rule is set by the 12th Amendment, which states that no person who is ineligible to be President may be Vice President.

URL: http://www.usconstitution.net/constfaq_a1.html