Answers From the FAQ, Page 4
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.
Q61. “How we can account for the fact that the
U.S. Constitution has been amended only 27 times in the past 200 years? Do you
have any feed back on this?”
A. Actually, since it was written in 1787, it is the last 214 years…
The beauty of the Constitution is its brevity. It does not attempt to
mandate too much, like some constitutions which are hundreds of pages long. Any
power it does not grant the federal government, and which is not otherwise
expressly forbidden, is left to the states. Think about how much you
don’t have to write down if you say “these are the rules, and anything
not in the rules is OK.”
If you look at the amendments, aside from the Bill of Rights, you’ll find
that most are there to fix errors, clarify, or extend voting rights in one way
or another. Very little has actually changed (aside from the landmark
14th).
Q62. “I have a friend that told me that I have a
constitutional right to travel in this country. He stated that to tax that
right with driver’s license fees, motor registration, license plate fees and a
gas tax is unconstitutional and that some people resist this ‘violation’ in
various degrees by challenging then in a court of law and eventually having
them overturned. Is there any truth to this and what do you base your
arguments on.”
A. You don’t have an explicitly stated constitutional right to travel within
the country, but since you are not restricted from interstate travel, the 10th amendment says you have the right anyway. It
could be reasonably argued that Article 4, Section
2, Clause 1, presumes the right to travel between states when it says that
a citizen of one state shall have all the rights of a citizen of another
state.
Driver’s license fees, state gas tax, license plate fees, registration
fees, and any other auto tax imposed by the state are entirely constitutional
under the U.S. Constitution, which basically says the State can do anything it
wants to, as long as the Constitution does not expressly forbid it. Unless
that state’s state constitution forbids such a tax, it is legal.
Federal gas taxes are constitutional under Article 1, Section 8, which states that the
Congress can lay excises, which is what the gas tax is.
So it’s no wonder that any case challenging these taxes is thrown out of
court.
Q63. “Can the Federal Government actually own
land, i.e the public lands which are managed by the various agencies, such as
U.S. Forest Service and Bureau of Land Management?”
A. Article 4, Section 3, allows Congress to
make all rules respecting the territory and property of the United States. If
the United States were not constitutionally able to own land, then the Framers
would not have mentioned the property of the United States.
Q64. “Is there any place I could find information
on the electoral process?”
A. The electoral process, at least for presidential elections, is spelled
out in the Constitution in Article 2, Section 1
and the 12th Amendment. It is detailed on this
site on the Electoral College Topic Page. You
might also be interested in the Presidential
Campaigns Page and the Election 2000 Page.
Basically, each state has a number of electors equal to the number of
Senators and Representatives they have in Congress (at least 3 per state).
On election day, the people of each state cast their ballot for the
president and vice president. But what they are really doing is voting for a
slate of electors pledged to those candidates. The fact that the people vote
at all is a matter of tradition and/or state law rather than constitutional
law. The electors in a state may be appointed any way a state sees fit. Not a
single state does not currently use popular ballot for that choosing, but they
don’t have to.
Once the votes have been counted, that candidate with the most votes gets
all of the electors in that state (with the exception, as of this writing, of
Maine and Nebraska – see the page above for details). Electors may not be
members of Congress or be in any other government position. The electors in the
state meet and vote for the President and for the Vice President in separate
ballots. Though the assumption is that the electors will vote for the chosen of
their party, there is no constitutional rule that says that (in other words, a
Clinton elector could have voted for Bush). Some states (Vermont, for example)
have rules stipulating that electors will vote for the candidates of their
party. The votes are transmitted to the Senate.
In the Senate, the votes are counted in the presence of the whole congress,
and the President is the one with the majority of votes. If there is no
majority, the top three candidates are voted upon by the assembled congress.
Each state is given one vote, and the President is chosen by them; if no
majority is found, votes continue. If no President has been chosen by the March
4th, the Vice President, who is chosen in a similar fashion, will be acting
President.
Q65. “Where in the Constitution does it mention
states’ right to secede from the union?”
A. The Constitution does not permit a state to secede once it is a part of
the Union. However, it does not prevent it either. It could be argued either
way. The Supreme Court added its opinion in Texas v White
(74 US 700 [1869]).
It said that the entry of Texas into the United States was its entry into
“an indissoluble relation.” It said that only through revolution or mutual
consent of the state and the United States could a state leave the Union (it is
interesting to note that Texas benefited from the decision that it had
unconstitutionally attempted to leave the Union).
Q66. “If the President dies and then the Vice
President takes over and dies too, who takes over then?”
The Vice President. One of the VP‘s first acts as a new President would likely be the
appointment of a new VP. The new VP must be confirmed by both Houses of the
Congress (viz 25th Amendment). If both die at the
same time, the Speaker of the House is President. The entire line of succession
is spelled out in the U.S. Code (and elsewhere in
this FAQ).
Q67. “Is there anything in the U.S. Constitution
that guarantees its citizens an education? My uncle is being forced to pay for
summer school for his children by the NYC Board of Education. Unless he pays,
my cousins are going to have to repeat the grade. I see this as an attack on
the lower classes, who will obviously have a problem paying for their ‘public
school’ education.”
A. There is no enumerated constitutional right to an education. A state
constitution may include such a right, but I doubt that being required to pay
for education would be considered a violation of that right. The problem with
something like your uncle’s situation is that, to be blunt, if a child does not
apply himself enough during the school year to pass from one grade to the next,
is it the school’s responsibility to pay for that child to have remedial
classes to move along? I suspect not; after all, if your uncle does not wish to
pay, the kids could just repeat the grade for free.
Q68. “The amendment which abolishes slavery seems
to say that slavery is abolished except for those convicted of crimes… Is
that still true?”
A. The 13th Amendment does not permit
prisoners to be sold off as slaves – it does permit them to be forced to do
involuntary servitude, which is quite different.
Q69. “Is there a designated holiday honoring the
Constitution?”
A. Yes – September 17, the anniversary of its signing.
Q70. “Can a President, after serving his/her term,
run for Congress or the Senate?”
A. There’s nothing that says you cannot. I think such a thing would have
been more likely earlier in U.S. history – presidents nowadays enjoy a career
of being former presidents until they die. In 1830, John Q. Adams was elected
to the House following his presidency and in 1874, Andrew Johnson was elected
to the Senate following his. In 1921, William Taft was appointed Chief Justice
of the Supreme Court by Harding.
Q71. “I cannot find anywhere in the Constitution
that refers to separation of church and state.”
A. Though many people assume the 1st Amendment
sets out some separation, the phrase does not appear in the Constitution. The
phrase “wall of separation” appears to have been coined
by Jefferson, in speaking of the religious liberties granted by the
Constitution and the Bill of Rights. Madison, however, said that there is a
line between church and state, not a wall – the distinction may or may not be
significant.
In practice the separation is more theoretical than actual. In a truly
separate society, we would not invoke the name of God on our currency, nor
would we speak so highly of our Judeo-Christian values. But we do – the fact of
the matter is, completely separating religion and government is probably
impossible, so long as religion is an important part of the lives of the
citizenry. The best we can hope for, and what I think the Constitution tries to
protect, is to ensure that there is no discrimination on the basis of religious
belief – that there be no religion litmus test.
Q72. “What is the process for replacing the Vice
President if the President leaves office permanently, and not temporarily as
with an illness, etc.?”
A. The President appoints a new Vice President on vacancy of that office, as
directed in the 25th Amendment. So if Bush were
to resign, Cheney would become President, and then appoint a VP. If Cheney
were to then resign, that VP would become President and appoint a VP. If
Cheney resigns, Bush appoints a VP. And so on.
Q73. “Where are the requirements for the right to
vote spelled out? Specifically if you were dishonorable discharged from the
military, are you ineligible to vote for president?”
A. It depends on your state – a state cannot deny the vote solely on your
gender or race, etc., but it could have other requirements, one of which could
be denial for dishonorably discharged veterans. I doubt it, though. More likely
would be convicted felons currently in prison, and the like.
I did find an interesting tidbit: literacy tests are legal, as long as every
voter has to take one. Logistically, it would not be possible, but it is legal
(42 USC Sec 1971.a.2.C).
Q74. “The wording of the 12th amendment implies
that the election of the Vice President is completely separate from that of the
President. Should we not be able to vote for our choice of Vice President
regardless of party affiliation? How long has this been going on?
A. The elections of President and Vice President are separate… in the
Electoral College. Each elector submits a ballot for each. The key to your
question is how are the electors chosen?
Each state can have its own rules, so I cannot speak to them all. Here in
Vermont, we vote for a pair of names, nominating an elector who is, in theory
at least, pledged to vote in the College for one person for President and
for another for Vice President.
In truth, the people don’t even need to be granted the right to vote for
President and Vice President (though any state legislature that tried to take
that right away would likely be impeached). Article
2, Section 1 says, in part:
Each State shall appoint, in such Manner as the Legislature thereof
may direct, a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the
Congress:
The 12th Amendment changes nothing in how
electors are selected – just that there be separate ballots for President and
Vice President. Prior to that, the President was the person with the most
votes, and the Vice President was that person with the next most votes (with
some caveats thrown in for non-majority and tie votes).
Once the general election has been held, and we’ve all voted for our
electors, the Electoral College meets, casts its votes, transmits them to the
President of the Senate, and that’s that for another four years.
Q75. “In the presidential election of 1800, Aaron
Burr and Thomas Jefferson received the same number of votes in the electoral
college. Congress chose Jefferson as President and Aaron Burr as Vice President
using Article 2 Section 2 of the Constitution. How did Congress arrive at this
decision.”
A. The election was really between Jefferson and Burr on the Republican
ticket and Adams and Pinckney on the Federalist ticket. The top two
vote-getters were the Republicans. The problem is that since there was no
separate election for President and for Vice President, they had two candidates
from the same party as the top two choices – which was to be President?
The Constitution says that the issue is settled in the House. The kicker –
the House was dominated by Federalists. To win, one of the candidates needed
the votes of nine states (one vote per state, sixteen states, eight plus one
needed for a majority); after thirty-five ballots, there was still no winner.
Jefferson smoothed some feathers and was elected, with Burr as his second. The
12th Amendment was passed a few years later as a
result of this near-crisis.
Q76. “Is the United States a constitutional
republic? Is one of the purposes of a constitutional republic to protect the
rights of minorities from the tyranny of the majority?”
A. The United States is a federal republic and a constitutional
representative democracy.
The “federal” part is one of three basic types of organization of power –
unitary, confederal, and federal. Most nations are unitary in nature (local
government with a powerful national government). There are no confederacies
that I know of at this time (the U.S., under the Articles of Confederation was
one; Germany and Switzerland have also had confederate systems in the past).
Federal systems are common among large nations where several levels of
government are needed. Australia, Canada, and Brazil are federal as well.
Federations do not always work, such as in the case of the United Arab
Republic.
The “republic” implies that we have a strong head of state (the President)
and elected officials representing the people.
The “constitutional” part means that we have a constitution, which is pretty
obvious, considering this site. Finally, the “representative democracy” part
means that the people elect representatives to take care of legislative
matters. Originally, the only part of the government that fit this description
was the House of Representatives. Today, the Senate does, too, and in current
practice, so does the Electoral College.
The mere fact that a nation has a constitution, is a federation, or is a
republic, does not imply that minorities are fairly treated. It is the content
of that constitution, and the values of that federation and/or republic that
protects the rights of minorities.
Note that a democracy, in the true sense of the word, does not protect the
minority – majority rules.
Q77. “Is it unconstitutional for an organization
such as the NCAA to deny athletes the right to obtain a job, or put a limit on
the amount of money that a person can make? Does the 14th Amendment cover this
when it says no State can deprive any person of life, liberty, or
property?”
The Constitution, for the most part, places restrictions or grants powers to
the federal government; state government less so. It has no power over private
individuals or organizations. That having been said, however, the federal
government can make laws that make it illegal to do this or that. So while it
is not unconstitutional for a private organization to deny an athlete the
right to work, it could be made illegal.
Now, let’s look at this specific case. Be aware that I am not a lawyer, nor
did I crack the books to do extensive research on the NCAA. So if anyone has info to the
contrary, please let me know.
As I understand it, a school must be a member of the NCAA to play sanctioned
games against other NCAA schools. To be an NCAA school, the school agrees to
abide by certain rules, which may include restrictions on what amateur
athletes can and cannot do, and what schools can and cannot do for a member of
their teams. If one of the rules is that you cannot provide cars for your
athletes, then that’s one of the rules. The player has the option of not
playing for that team if he or she does not agree with the rules. The school
has the option of being an NCAA team or not. So I doubt that there is any law
that prevents the NCAA from making rules of this nature, and unless the NCAA
was taken over by the federal government, it would not be unconstitutional.
Q78. “Can a president serve two consecutive terms,
sit out a term and then be re-elected.”
A. The first phrase in the 22nd Amendment is
pretty clear: “No person shall be elected to the office of the President more
than twice…” You cannot be President for two terms and then be President
again later. That President cannot even be Vice President, by virtue of the 12th Amendment, so unless it is repealed, two is as
far as you can get. The only exception to this whole scheme is when a person
assumes the Presidency after the half-way mark in a term. The President would
have served out one term, could be elected to a second term, and is still
eligible for one more full term.
Q79. “Does perjury fall into the category ‘high
crimes and misdemeanors?’ i.e. could the president be impeached for lying to
the Supreme Court?”
The definition of high crimes and misdemeanors is not supplied specifically
by the Constitution. It is left, then, to the House to determine if a
president, or other official, should be impeached for any offense. Perjury is
certainly an offense, and perjury in front of the Supreme Court is as bad as
you could likely get, so if it were proven that a president lied in a Supreme
Court hearing, it is likely impeachment would proceed (remember, though, that
there is usually not testimony of witnesses in front of the Court, so it is
unlikely anyone would have the opportunity to perjure themselves in front of
the Court). It is pretty subjective, but tempered with the super majority in
the Senate needed to convict.
Q80. “What was the criteria set by the framers of
the Constitution for citizenship and the right to vote?”
A. There is no explicit definition of citizenship in the Constitution. See
the Citizenship Page for more information.
Voting rights are also not mentioned in the original Constitution. The 14th Amendment basically set the standard at all
males 21 and over. The 15th guarantees voting
regardless of race. The 19th guarantees voting to
women. The 23rd gives citizens of Washington D.C.
the right to vote for president. The 24th
prohibits poll taxes in the voting for federal representatives. The 26th lowers the age to 18.
|Home|
|Constitution|
|FAQ|
|Topics|
|Forums|
|Documents|
|Timeline|
|Kids|
|Vermont|
|Map|
|Citation|
|Survey|
|Support|
Last Modified: 24 Jan 2010