Answers From the FAQ, Page 2
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.
Q21. “Do you know of any writers of the
Constitution? If you do please tell me some and what they did for
it.”
A. The Constitution was written by a committee over the course of several
months. If you want a list of the members of the Constitutional Convention, all you need to do is
look at the document itself – the members are also the signers listed before the amendments. This site
includes short sketches of each framer as written
by William Pierce.
Q22. “What is habeas corpus? What does a writ of
habeas corpus do?”
A. Habeas corpus is a pretty tricky legal concept. Its most common practical
effect in U.S. law is that no person can be jailed without being charged with a
crime. It also gives convicted criminals the right to challenge their
convictions and sentences on the grounds that his or her right to due process
was violated in some way. In death penalty cases, habeas corpus challenges are
one of the most common types of challenge. The restriction of habeas corpus,
such as limiting appeals to one year from the time of conviction, or limited
the number of appeals, are touted by law-and-order types as the best way to
punish criminals as they were meant to be punished, the way the judge and jury
decide they should be punished.
Personally, I think that the guarantee of habeas corpus is one of our most
important liberties, and its restriction should not be taken lightly by anyone.
The Constitution is pretty clear on the matter. Precisely, it states “The
privilege of the writ of habeas corpus shall not be suspended, unless when in
cases of rebellion or invasion the public safety may require it.” I see no
such case in our everyday society, even for terrorists (another category of
criminal that restrictions of habeas corpus has been proposed).
Q23. “What are the conditions needed for a
Constitutional Convention, and when was the last one held?”
A. The Constitution itself has details about the calling of a
Constitutional Convention, in Article 5. To
have a Convention, two-thirds of all states (with 50 states, that’s 34 states)
must call for a Convention. There has never been a Constitutional Convention
as detailed in the Article, though over time, many states have petitioned for
one. All amendments to the Constitution have been through bills passed through
Congress and then passed by the states. See the Amendments Page for more details.
Q24. “I am doing a debate soon on whether smoking
should be banned from public buildings. I was assigned to be the affirmative
side and support the ban. I was trying to think of some arguments that the
negative side could use and the ninth amendment came to thought. I was
wondering if the unalienable rights of life and happiness are superior to the
‘unenumerated’ right of smoking in the ninth amendment?”
A.The right to smoke would certainly be covered under the 9th Amendment.
But, by extension, so is the right to snort cocaine; but it is illegal, and not
just at the state level. So perhaps to start, you need to ask, what gives the
U.S. the right to make cocaine illegal? From there, you can extend to include
smoking.
The Congress has broad powers to regulate most things under the Interstate Commerce clause. Because most
tobacco products are created for sale outside the state they are created in,
the Congress can tax and regulate tobacco products. If cigarettes were only
consumed in the state they were created in, the Congress may not be able to do
too much about the issue. It would likely, however, have the power to ban
smoking in all government buildings, seeing how it has the power to set rules
for federal agencies, and, by extension, their facilities.
You may have trouble arguing that the Federal Government has a similar right
to regulate other public places, because it exerts no direct influence.
However, it can make funds for schools, for example, contingent upon it being a
non-smoking area.
The powers granted agencies such as the FDA would allow it to ban tobacco outright, I
suspect, even given its wide usage; the FDA may even be able to ban smoking in
public places, though I’d have to check its rules and the U.S. Code governing
the various agencies.
Boiled down, constitutionally, it is easier to argue your opponent’s side.
You will likely need to come up with some basic reasons why the Constitution
might allow such a ban, and then move on to more scientific evidence of why it
should.
This is a multi-part question pertaining to the “Nanny Trial” in Fall,
1997.
Q25. “As a British national, what constitutional
rights, if any, is Louise Woodward entitled to?”
A. This question is more one of U.S. law than of the U.S. Constitution.
However, it is an interesting one:
Woodward could have been summarily deported back to the U.K.; or she could
be tried under the normal rules of law. If you are tried in a U.S. criminal
court, you are entitled to all rights enjoyed by citizens in the court, even if
you are not a citizen. There may also have been an agreement in effect that
she, as an au pair contracted with the United States Government, agreed to be
subject to its laws.
Generally speaking, anyone physically in the U.S. will be treated as a
citizen, with all rights guaranteed a citizen. There are some exceptions to
this general rule. For example, while entering the United States (and
physically in the United States), a foreign national can be detained and
expelled. In some cases, detention is for an unlimited amount of time, and some
illegal immigrants have been held for years on end.
Q26. “By what authority did Judge Zobel overrule
the jury? The 7th amendment seems to prohibit this.”
A. The key is “the rules of common law.” The right (indeed, the duty) of a
presiding judge to nullify the finding of a jury is well established. The
judge, in theory, is supposed to listen to the evidence almost like a 13th
juror. If he decides that the jury made a bad choice, based on the law, then he
can throw out the decision. The powers of judges vary from state to state; I’ve
heard that the power of judges in Massachusetts is very high.
Q27. “And also, what rights do Deborah and Sunil
Eappen have as relatives of the victim? Could they sue Judge Zobel on
constitutional grounds?”
A. None. Victims have no constitutional rights, as victims. It is, perhaps,
sad to say, but there it is. This was, however, a state trial, and they may
have certain rights as victims in Massachusetts. I haven’t ever heard, though,
of a judge ever being sued by anyone involved in a criminal case because of a
particular decision in that case. Unless there are some specific grounds in a
specific state, I don’t even know what kind of grounds one would have to sue a
judge because of a decision or ruling in a court case.
Q28. “What exactly does the last amendment
regarding representatives and senators pay mean?”
A. It basically boils down to this: The members of the House and Senate may
give themselves a raise in pay if they want to, but it may not take effect
until after another election year. The intent is that if the people do not like
the raise that they have given themselves, they can use that as an issue in the
voting and decide that they don’t want their Representative or Senator in
office any longer. The amendment, unfortunately, has been severely limited
by the U.S. courts, because of a legal technicality called “standing.” No U.S.
tax payer, or group of tax payers, has standing to bring a 27th Amendment suit
over pay increases because no one tax payer is particularly harmed by such a
raise; nor can a member of Congress bring suit. A case was brought before
the U.S. Supreme Court in October 2001, but the Court refused to hear the
case.
Q29. “I have heard somewhere that a women can’t
become President of USA. Please reply to me whether it is true or
not.”
A. The question arises because of the use of the masculine pronouns “he” and
“his” in, for example, Article 2, Section 1:
“He should hold his Office during the Term of four Years…”
It should come as no suprise to anyone even vaguely familiar with history
that the Framers never would have thought that a woman might one day be elected
President. They didn’t even think women needed to vote. The use of the
masculine pronouns, then, should also be no surprise. English, however, lacks a
gender-neutral pronoun, and this is fortunate for women and the Constitution.
It is fortunate for women because it means that there is little doubt they
could be President. It is fortunate for the Constitution, because it avoids
needing to be amended just to correct this problem.
In the end, the question has really alredy been answered for us. Article 1, Sections 2 and 3 refer to both Representatives and Senators with
the masculine pronoun, and there is no effort to keep women out of the Congress
because of this fact. The precedent is set, and women are free to run for, and
someday win, the Presidency.
Q30. “The wording of the Constitution gets
confusing, which is understandable since it was written in the 18th century and
uses legal terms that most laymen have never had cause to learn. Specifically,
I can’t make heads or tails of Amendments XI and XII. Could you explain these
to me?”
A. The 11th Amendment was a direct response to
a case that the Supreme Court ruled upon in 1793 (Chisholm v Georgia),
in which an individual not from Georgia sued the state of Georgia. The Congress
was outraged, and the amendment passed Congress with blinding speed. The
controversy was not so much that a state was sued, but that the Court
determined that it had original jurisdiction over the case, based on Article 3 of the Constitution. The states did
not want to be answerable to federal courts, and this amendment sought to have
that effect. The history and current effect of the Amendment is highly
technical in a legal sense. I suggest reading the Annotated
Amendment at the GPO
Web site.
The 12th Amendment was intended to clarify the
process to be used in the selection of the President and Vice President, as
well as change the method of electing the Vice President. It was a response to
the election of 1800, where Jefferson and
Burr received equal votes in the Electoral College, even though it was plain
from the voting that Jefferson was intended to be President and Burr VP. Previously, the Vice President was that
person who came in second in the Presidential balloting in the Electoral
College. This amendment states that the Vice President is a separate office for
which a separate vote is taken. The College will meet separately in their
respective states, cast their votes and send them, sealed, to the President of
the Senate. Those votes are then opened and counted in front of the entire
Congress.
It goes on to state that if no one person has a majority of the electoral
votes, the top three vote-getters will be presented before the House of
Representatives, and that body will vote on who of the three shall become
President. In that voting, each state will have one vote. A similar provision
is made for the voting for the Vice President.
The amendment introduces an interesting technicality into the identity of
the President and Vice President. It almost precludes the two from being
citizens of the same state, since the electors in that state cannot cast votes
for more than one person from that state. Since Vice Presidential candidates
are today often chosen to help a regional favorite reign in national appeal, it
is rare for this to come up now (though the recent 2000 election did have
questions about the residency of George Bush and Richard Cheney).
Q31. “How does the 16th Amendment make the Income
Tax possible?”
A. Quite simply, the 16th Amendment authorizes
the Congress to lay and collect a tax on any income. That’s what the amendment
says, and that’s what is does.
In follow-up:
Q32. “I didn’t find myself enlightened by the
answer…. Perhaps a better way to phrase the question would be, why couldn’t
an income tax be levied without the 16th amendment? I know that Congress tried
to pass an income tax before the 16th amendment but the Supreme Court struck it
down. What was the Supreme Court’s rationale for doing so? If, as the FAQ
says ‘the 16th Amendment authorizes the Congress to lay and collect a tax on
any income,’ what kinds of income could they tax before, and what part of the
Constitution so limits them?”
A. The question, then, is WHY was it was needed. The issue is not that the
Constitution otherwise forbids an income tax, but that it does not otherwise
permit one. Without an amendment to specifically state that an income tax was
constitutional, any income tax proposed by the Congress would be subject to
judicial review, and possible overturning by the Court; and then who knows what
kind of chaos that would cause. Say the government levied an income tax in
1910, and in 1913 the Court determined the tax was unconstitutional. It is not
outside the realm of possibility that the Court would order all collected funds
be returned to the people. Yikes!
In 1895, the Court ruled that a tax from income derived from property was
unconstitutional based on Article 1, Section 9,
Clause 4. If you read that, you’ll see that it is unclear how this makes
an income tax unconstitutional, but the Court sometimes deals in legal
technicalities, and this technicality divided the court 5-4 against the tax.
The amendment was ratified 18 years later, and prevented such cases from ever
needing to appear in court.
Q33. “I am a law student from Guatemala who needs
to know how many constitutions has had America since its independence. That is
the question whose answer is being impossible to find.”
A. Since the Declaration of Independence in 1776, the U.S. has had two
constitutions. The first, the Articles of Confederation, was established
in 1781. The current Constitution was established in 1787.
Q34. “I have been challenged to find the text of a
thirteenth amendment which was proposed but not ratified. I believe it derives
from the Crittenden Compromise and came about in 1860-1861.”
A. In 1861, an amendment was sent to the states for ratification. It
prohibited the Federal government from interfering in the internal policies of
the states, with slavery being mentioned specifically. If ratified at the time
of its submission, it would have been the 13th Amendment. The amendment never
was ratified, and is, in fact, still outstanding. You can find information
about it and other failed amendments on my Amendments
Page.
The text of the amendment:
No amendment shall be made to the Constitution which will authorize or
give to Congress the power to abolish or interfere, within any State, with the
domestic institutions thereof, including that of persons held to labor or
service by the laws of said State.
This was passed in the 36th Congress. If you can get your hands on the
Congressional Record from that Congress, you can likely find out a lot more
info.
Q35. “Article I section 2 clause 3, states that
each state will have one representative for every thirty thousand. This is
obviously no longer true and the house is limited to 435. I can not find an
amendment that changed this. What gives?”
A. See Amendment 14, section 2:
“Representatives shall be apportioned among the several States according to
The total number of Representatives is set by
their respective numbers, counting the whole number of persons in each State,
excluding Indians not taxed.”
statute, not in the Constitution. The detail concerning 30,000 means that the
ratio would never be lower than 1:30,000 (like 1:20,000). This was done to
prevent the House from getting too large and to prevent larger states from
having an overwhelming number of representatives. The average ratio today is
about 1:640,000.
Q36. “If you exercise your 5th amendment right and
the court grants immunity and you still refuse to incriminate yourself you can
be held in contempt and sent to jail. Locally, years ago a reputed Mafia boss
pleaded the 5th to every question he was asked about the ‘mob.’ He was granted
immunity from prosecution but continued to ‘take the 5th.’ His contention was
that he would get immunity from prosecution by the authorities but no immunity
from the ‘street.’ He served 7 years in NJ prison for contempt of
court.”
A. The Supreme Court has held, in many cases over time, that the granting of
immunity removes the danger of prosecution, and that is what the 5th Amendment protects. It does not envision
protection from elements outside the government as a valid reason for refusing
to testify. This makes perfect sense to me, actually. Since nothing
he said could land him in jail, he could be compelled to speak. The
“real-world” consequences have no bearing. It is an interesting legal
point.
The following was sent to me as part of an email that advertised for
a book about the Constitution…
Q37. “Send 20 FRNs [Federal Reserve Notes,
commonly but erroneously called dollars – see the Coinage Act of 1792. A dollar
is defined by law as 371.25 grains of fine silver].”
A. I was curious about this, so I looked it up. According to the U.S. Code:
“United States money is expressed in dollars” (31 USC 5101). The term “dollar” is used twice in the
Constitution: once in Article 1, Section 9
when referring to a slave tax (no more than 10 dollars per head) and once in
the 7th Amendment – the U.S. Code is essentially
putting into law what can be inferred from the Constitution. A dollar coin, by
law, is defined as: “a dollar coin that is 1.043 inches in diameter and weighs
8.1 grams” (31 USC 5112(a1)). So, I think the way it works is that a
federal reserve note is just another way of saying “dollar,” historical
definitions and superseded law not withstanding.
Do you accept checks with “dollars” pre-printed on them?
Q38. “What does the Constitution say about
Same-Sex Marriages? What does it say about Marijuana? What does it say about
Prostitution?”
A. Nothing, nothing, and nothing. By virtue of the fact that it says
nothing about these issues, the power to regulate them is left to the
states.
Q39. “Can you think of a time where the 21st
amendment ever played some kind of active role in today’s modern
life?”
A. Of course. It plays a role every single day. If you are a beer drinker,
or enjoy wine with dinner, it has an effect in that after the 18th amendment and before the 21st amendment, alcoholic beverages were illegal
(de jure, though de facto they were available; this fact contributed to a
general sense of lawlessness that helped contribute to the gangsters of the
30s).
Q40. “I have heard that the U.S. constitution was
written originally in German. Is there any truth to this?”
A. No.