Answers From the FAQ, Page 3 – The U.S. Constitution Online – USConstitution.net

Apr 23, 2024

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Answers From the FAQ, Page 3

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.

Q41. “I’m writing a paper regarding the
implications of Janet Reno appointing a special prosecutor in certain
instances. Does anyone know where the office of the attorney general is
authorized? What are it’s specific responsibilities?”

A. The Attorney General is authorized in the U.S. Code, 28 USC Sec 503 (or Title 28, Part 2, Chapter 31,
section 503 for us mortals). Specifically:

“The President shall appoint, by and with the advice and consent of the
Senate, an Attorney General of the United States. The Attorney General is
the head of the Department of Justice.”

The duties of the AG are those of the
Department of Justice, as set out in Title 28, Part 2. The first Attorney
General was Edmund Randolph, appointed by George Washington in 1789.

Q42. “I have to give a persuasive speech on how I
think a Bible class should be offered, as an elective at public schools (or at
least for them to be possible to allow). I am going to give examples of how
the Constitution changes through interpretation, but I would like to know what
were the most recent amendments added on and how they effected the old ways.
I’m trying to convince that it’s possible for the Constitution to alter in
order to allow a Bible class to be offered, giving the Bible is a historic
document and that it is based on facts.”

A. I think that any school would be (and should be) allowed to teach about
the Bible as an historical and literary book. I don’t think that it should be
taught as a religious book, per se, unless it were a course on religious texts
in general, part of a series of texts which might include Confucianism,
Buddhism, Judaism, and Islam. When I went to high school we had a class called
“The Bible as Literature.” In that context, the Bible is not promoted as a
part of any religion. It is being examined as any book would be, but because
of its historical nature, its many versions, and its length, you can have a
full semester class devoted to it.

If you are trying to argue that a class that celebrates the Bible as a
Christian Holy Book, which may include praying and sermonizing, then you have a
hard row to hoe. I don’t see as likely any such class being taught in a public
school, short of an amendment to the Constitution.

To answer your questions specifically, to see what the most recent
amendments are you simply need to look at the document itself. The last
concerned congressional pay. The next concerns voting age. Before that,
clarification of the line of succession to the presidency. Before that, a bar
to poll taxes. And the last since 1960, Washington D.C. residents were granted
suffrage. There is nothing new in the Constitution concerning religion in the
past 200 years. You can look to the decisions of the Supreme Court to see how
they have applied the so-called separation of church and state. Could the
Constitution be changed the allow more religion in the schools? It could, but
I don’t think it ever will.

Q43. “Recently we took a test on the Constitution
that asked a question about a suspensive veto. No one in our class, including
our teacher, had ever heard of this. I was wondering if you could please tell
me what a suspensive veto is and how it can be overridden?”

A. Generally, a suspensive veto is the ability of an executive to return a
bill to the legislature without the bill becoming law. In the United States,
the President can veto a bill the Congress has passed. See Article 1, Section 7, Clause 2. The veto is
suspensive because the Congress can override the veto, given a large enough
majority. The opposite of a suspensive veto is an absolute veto, a power the
President does not have. However, if a vetoed bill is not repassed by
Congress, the bill dies, and the suspensive veto, at that point, could be
considered absolute.

Q44. “I am writing a paper in English about
whether I think American citizens have the right to break the law. Does it
doesn’t it say in the Constitution that a citizen must abide by the state and
federal laws?

A. I think to take the position that we have the right to ignore laws is
tenuous at best. This is a nation of laws, starting with the Constitution. It
is true that the Constitution itself is much more a restriction of governments
than people, but I cannot see anywhere within that it even back handedly
endorses the notion that laws may be disobeyed, without consequence. There is a
presumed lawfulness of the citizenry – see the Constitutional Rights and Responsibilities
Page.

This having been said, I think it is also reasonable to argue that if a law
is invalid, it is also the responsibility of a citizen to change the law and,
if necessary, disobey the law. Of course, since the constitutionality of a law
is personal opinion at best (barring a court decision to the contrary), any
citizen who breaks the law must be willing to accept the consequences of doing
so. When marchers took to the streets in 1965 to protest for voting rights,
Alabama law enforcement physically attacked the marchers under the pretense
that the marching restricted the public’s right to free mobility on the
streets. The marchers were arrested, beaten, and subjected to attack dogs, tear
gas, and water cannon. In the end, the courts ruled that the right to petition
the government, even in large groups, was constitutionally protected. Such
civil disobedience is often said to be an obligation of citizenship.

Q45. “Can you tell me how did the states get the
power to decide that people had to have so much studying, etc. in order to
have a license, and if they do not have this license, then they are doing
whatever they do illegally?

A. This is an inherent power of the state, a power the state has by virtue
of being a state. In the Constitution, the powers not explicitly granted the
federal government are left to the state. The ability to regulate professions
would be one of those powers, or to regulate if you are able to drive. The
issuance of a license to practice medicine, or law, or to be an exterminator,
is one of the police powers of the state, as is the ability to issue fishing or
driving licenses.

Q46. “What amendments should I look at dealing
with the duties of citizens to uphold the Constitution?

A. The Constitution deals with the rights of
citizens, and not the responsibilities of
them. I think what you’re looking for is more common law or in the U.S. Code
than in the Constitution. You might find some guidance in the Oath of
Citizenship, which new citizens take. It can be found on the Citizenship Page.

Q47. “Is tabloid journalism what the writers of the
First Amendment really had in mind? Or is that what is meant by ‘…the free
exercise thereof…,’ which I find hard to believe?”

A. What the authors of the Constitution had in mind and what effect the
Constitution has on us now are often two entirely different things. However,
that is the way things are. To have a free press, you need to put up with some
of the crap. To have a New York Times, you need to accept that there
will be a Weekly World News.

You have to understand, too, that the press is as much a business as it is
a fourth branch of government. A paper will appeal to a certain audience, and
that audience will expect the news to be presented in a certain way, or to
include some stories but not others. That’s the way our system works.

One final point: if you look into the history of journalism, you might be
surprised to find out how partisan and biased newspapers were in the time of
the Framers. The notion of journalistic neutrality is a relatively recent
concept.

Q48. “Can you tell me why the ERA was not
ratified?”

A. The ERA was not
ratified because not enough states approved it before the deadline set in the
legislation, nor in the extension given it by subsequent legislation.

As for the reasons it did not pass in certain state legislatures, you’ll
have to refer to the archives in the various states to find out the arguments
for and against. The general argument against it, however, was that the ERA
would burden government and business too heavily; that men and women are
inherently different, and those differences should be celebrated and not
suppressed; and that it simply was not needed.

Q49. “It would seem that Article 13, Section 1
would outlaw the concept of the conscription of citizens into the military
forces (“Neither slavery nor involuntary servitude….”) How has our
government legally justified that practice (I’m sure I’m not the first person
to see this paradox.) It would also seem that, by extension, the mandatory
registration for the draft that currently is practiced would also be
unconstitutional.”

A. Though you might be able to argue that compulsive military service is a
form of involuntary servitude, I think that if the issue came up in court, the
judge(s) would note that the term “involuntary servitude” has a very specific
connotation, and military service is not part of it. The Congress has the
power to regulate the armed forces, and the Selective Service registration
doubtless would fall under that provision.

Q50. “I am having trouble figuring out exactly
what the term ‘civil rights’ includes.”

A. Civil rights are those derived from simply being a citizen. When blacks
demonstrated for their civil rights, they were essentially asking to be treated
like every other (white) citizen, that they have no special restrictions placed
on them because of color. The rights of free speech and freedom of (or from)
religion are civil rights. Note that these are civil rights in the context of
the U.S. Some nations do not have a right of free speech, so in that nation it
is not a civil right.

Q51. “I was wondering what things in the
Constitution were actually original and what things were ‘copyrighted?’ I’m
doing this for an essay. I know that a lot of things were from the Bible and
from other constitutions, but could you give me a detailed list
maybe?”

A. You are in error that there is a lot of text in the U.S. Constitution
from the Bible and from other constitutions. Most of the Constitution was
written by Gouverneur Morris of Pennsylvania after all the details had been
hashed out by a body of 30 to 50 other men. Though I’m sure there are phrases
and concepts from other sources, the U.S. Constitution is pretty original. On
top of that, as a government document, and one that is over 200 years old,
there is no copyright on it.

Q52. “Could you explain what is meant by ‘but no
attainder of treason shall work corruption of blood…’ as stated in Section
Three?”

A. It means that your offspring cannot be held accountable for your
treasonable actions. Basically, they wanted to ensure that the acts of one
person did not taint (at least in a legal sense) the rest of his family.

Q53. “Article III, Section 2 says:

“‘Trial of all crimes, except in cases of impeachment, shall be by jury; and
such trial shall be held in the State where the said crimes shall have been
committed; but when not committed within any State, the trial shall be at such
place or places as the Congress may by law have directed.’

“Yet there have been changes of venue that move a trial from one state to
another. A famous example is the Oklahoma City bomber trial, which took place
in Colorado. How is this possible? What rationale was used to reconcile the
change of venue to an out-of-state court with this clause?”

A. Good question.

I’m not sure the exact details of this case, but I can make some
guesses.

First, the crimes committed were in more than one state. I don’t think they
had to be held anywhere in particular, but I think that it likely was held in
the same judicial district as the crimes, or the bulk of them, or the result of
them. They could have been held in Oklahoma City, but then it would merely
have been a matter of convenience for witnesses and out of respect for the
victims. But in our system, the rights of the accused outweigh those of the
victim.

Second, this is a mandate on the government. If the accused requests a
change of venue, and has a good reason, the court is likely to hear it (and
sometimes, as in this case, agree with the request). I suspect the same
applies when the accused waives his right to trial by jury.

Third, this clause is all about fairness. If the court determines the
accused cannot have a fair trial in the state the crime was committed in
(assuming it is a federal court), then the court would have the ability to move
the venue no matter what the prosecution and defense say.

Q54. “Where is the Constitution
housed?”

A. It is housed in the National
Archives in Washington. All four pages of the Constitution are available
for public viewing along with the Declaration of Independence and Bill of
Rights. The Archives has a web
page available describing the Rotunda and how to visit it.

Q55. “I read that New Hampshire became the 9th
state to adopt an approval resolution on June 21, 1788 but that the
Constitution was not ratified until two years later. Why? And, what was the
specific date upon which the Constitution was ratified and by what act what
that accomplished?

A. The following is from The
National Archives Web site:

Q. When did the United States government go into operation under
the Constitution?

A. The Constitution became binding upon nine States by the
ratification of the ninth State, New Hampshire, June 21, 1788. Notice of this
ratification was received by Congress on July 2, 1788. On September 13, 1788,
Congress adopted a resolution declaring that electors should be appointed in
the ratifying States on the first Wednesday in January, 1789; that the electors
vote for President on the first Wednesday in February, 1789; and that “the
first Wednesday in March next [March 4, 1789] be the time and the present seat
of Congress the place for commencing proceedings under the said constitution.”
The Convention had also suggested “that after such Publication the Electors
should be appointed, and the Senators and Representatives elected.” The
Constitution left with the States the control over the election of congressmen,
and Congress said nothing about this in its resolution; but the States
proceeded to provide for it as well as for the appointment of electors. On
March 3, 1789, the old Confederation went out of existence and on March 4 the
new government of the United States began legally to function, according to a
decision of the Supreme Court of the United States (Owings v. Speed, 5 Wheat.
420); however, it had no practical existence until April 6, when first the
presence of quorums in both Houses permitted organization of Congress. On April
30, 1789, George Washington was inaugurated as President of the United States,
so on that date the executive branch of the government under the Constitution
became operative. But it was not until February 2, 1790, that the Supreme
Court, as head of the third branch of the government, organized and, held its
first session; so that is the date when our government under the Constitution
became fully operative.

So, these dates are important: The Constitution was accepted by the
Convention on September 17, 1787. It was officially ratified when New Hampshire
ratified it on June 21, 1788. The first Congress under the Constitution popped
into being on the 4th of March, 1789, and had its first quorum on April 6,
1789. The Executive was active on April 30, 1789. The Judiciary was active on
February 2, 1790. Perhaps the years between June 21, 1788 and February 2, 1790
is what they mean by two years? If they said that the Constitution was
“ratified” in 1790, that is definitely incorrect.

Q56. “Is the Preamble to the Constitution
considered law?”

A. No. In that it grants no power, nor restricts anyone. It only provides
context for the original version.

Q57. “I am in the middle of a raging argument
about amendments. Can a ratified amendment ever be
‘unconstitutional’?”

A. No, with one current exception. By its very definition, an amendment is
a part of the Constitution, and hence cannot be not constitutional.

The exceptions are listed in Article 5;
nothing baring the slave trade prior to 1808, and no change that denies a state
its equal suffrage in the Senate, without its consent (so that a group of
states cannot gang up on one state).

Q58. “I would like to know what the President can
and cannot accomplish via an Executive Order. If Congress has NOT passed laws
that mandate certain Administration policies which means that those policies
are merely the result of interpretation of existing law then can the President
issue an Executive Order that amend those policies, assuming the new policies
do NOT contravene existing law. Would this be constitutional?”

A. An Executive Order can be issued by the President at any time to modify
how any part of the Executive Branch does its job, or to modify how a law is
implemented, if such power has been vested in the President by another law.

For example, I did a search on executive orders with the word Naval in them,
and found one that transferred control of the Midway Islands from Navy control
to Department of the Interior control.

Another establishes an Emergency Board to mediate disputes among various
railroads, as provided in a section of the U.S. Code.

It is certain that an Executive Order could be unconstitutional.
I’m not sure I get your example, but from the executive orders I have read, the
power vested in the President by the Constitution or by existing law is what is
used as the basis for the ability to issue the order.

Q59. “I need help looking for where the
Constitution implies slavery. I looked at Article 1, Section 9, Clause 1 of the
Constitution. I need another example of the implied use of
slavery.”

A. When the Constitution notes “all other persons,” it means slaves (see Article 1 Section 2). When it talks about the
importation of persons (see Article 1, Section 9,
Clause 1), it means the slave trade.