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.