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Notes on the U.S. Constitution

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This document contains my personal notes about certain portions of the United States Constitution. Areas of the Constitution that I needed clarification upon are included here, with my findings. Where ever necessary and proper, I have included the sources for what I discovered. Where there is no source, it is most likely that I interpreted the text myself, paying close attention to the text or looking up the meanings of certain words or phrases not in common usage or not common in today's vernacular.

You may wish to view the full U.S. Constitution, or see the Glossary, Popular Names Page, the Notes Page, or the Advanced Topics Page, as well.

Email the Webmaster if you have different interpretations of the text I touch upon. I may include a "dissenting opinion" section in the future.

These notes were written by the Webmaster, and you can view his credentials.


Article II, Section 1 and 12th Amendment — The Electoral College

The Electoral College is a peculiar American institution. When Americans vote for President and Vice-President, they do not actually vote for those people, but for electors. These electors meet in their state capitals after the general election and cast votes for President and votes for Vice-President. Though electors are pledged to the candidates of their party, there is nothing in the Constitution requiring them to so vote — and, in fact, every so often an elector defects from his party's candidates, though the effect on the election is usually nil. Some states have laws against electors casting such "faithless" votes, but it is unclear if anyone could actually be prosecuted under such laws, since the electors are protected by the Constitution (though not in so many words).

Jeff Greenfield, formerly of ABC News and now with CNN, wrote a very interesting, irreverent tale about the Electoral College, called The People's Choice. It can be found on the Constitutional Bookstore Page.

For more information, see the Electoral College Topic Page.

Go to this point in the Constitution.


Article III, Section 3 — Treason

The authors were concerned about the definition of treason. They thought that it was used too broadly to define any dissenting opinions. Their new country would be much stricter about what treason was, and how one would be accused and convicted of it.

Treason, then, is defined only as going to war against the USA, or aiding the enemies of the USA. To be convicted, the accused must confess to treason, or be accused by two direct witnesses of the treason.

The authors were also concerned that the person convicted of treason be the only one to suffer for the treasonous acts. The Constitution explicitly states that there may be no "corruption of blood," or that the children and relatives of the traitor not be considered traitorous simply by relation; the "no forfeiture" clause basically means that once the traitor dies, "payment" for the crime ends.

Go to this point in the Constitution.


Article V — Amendment

Note the following small detail: the President is not a part of the amendment process. So what difference does it make when the President says that he or she does not like a particular proposed amendment, and they will not support it? None. At least, not technically.

Now, obviously, the world is not sterile, particularly in Washington. When a President expresses reservations or dislike of an amendment or proposed amendment, it is obvious that any President worth electing knows darn well that the Executive has no veto over any amendment. The process is left completely in the hands of the Congress and/or the States. However, the President, as presumed head of a political party, has power over those in the same party - or, if not power, at least some influence.

Because two-thirds of both houses must pass an amendment, and two-thirds of both houses are required to overturn a presidential veto, the framers may have decided to leave the President out for the sake of brevity. However, since the arguments of the President for the veto could change some minds between the passage vote and the veto vote, it is more likely the Framers just felt that amendments were something best left to the states and the representatives of the states.

The Supreme Court did deal with this issue, following the ratification of the 11th Amendment. It was argued that the amendment was invalid because the amendment was not passed to the President prior to being passed on to the states. But in Hollingsworth v Virginia (3 USC 378 [1798]), the Court wrote (in a footnote): "The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution."

More information on amending the Constitution is available.

Go to this point in the Constitution.


Signatories

Only thirty-nine people signed the finished product of the Constitutional Convention. In all, seventy-four people were selected to attend the Convention, but only fifty-five actually attended. Some of these left before the Convention was complete, some for personal reasons, some to protest the Constitution. Others remained at the Convention until the end, but then refused to sign. The following is a list of those delegates who attended the Convention but who did not sign the Constitution, and the reason they did not sign:

  • Connecticut - Oliver Ellsworth (left early)
  • Georgia - William Houstoun (left early), William Pierce (left early)
  • Maryland - Luther Martin (left in protest), John Mercer (left in protest)
  • Massachusetts - Elbridge Gerry (refused to sign), Caleb Strong (left early)
  • New Jersey - William Houston (left early)
  • New York - John Lansing (left in protest), Robert Yates (left in protest)
  • North Carolina - William Davie (left early), Alexander Martin (left early)
  • Rhode Island - sent no delegates
  • Virginia - George Mason (refused to sign), James McClurg (left early), Edmund Randolph (refused to sign), George Wythe (left early)

The following are those who refused to attend or were unable to attend:

  • Connecticut - Erastus Wolcott
  • Georgia - Nathaniel Pendleton, George Walton
  • Maryland - Charles Caroll, Gabriel Duvall, Robert Hanson Harrison, Thomas Sire Lee, Thomas Stone
  • Massachusetts - Francis Dana
  • New Hampshire - John Pickering, Benjamin West
  • New Jersey - Abraham Clark, John Neilson
  • North Carolina - Richard Caswell, Willie Jones
  • South Carolina - Henry Laurens
  • Virginia - Patrick Henry, Richard Henry Lee, Thomas Nelson

It should be noted that John Dickinson is officially listed as a "signer," but he did not actually sign the Constitution. Dickinson fell ill during the convention and was unable to attend on the day of signing. He authorized George Read to sign for him by proxy.

The reader may also be interested in The Framers Page and The Framers Data Page.

Go to this point in the Constitution.


Amendment 1 — Freedom of religion, speech, press

In my opinion, the First Amendment is the single most important part of the Constitution. It protects some of the most basic human rights and reflects a view of the dangerous places government might tread.

The ability to speak your mind is a right that Americans take for granted. Imagine being too frightened by the possible consequences of speaking out to actually do so. Your opinion would not matter — even your vote would be corrupted. Even as important is the right to petition your government — not only can you have an opinion about your government, the government must listen to you (though it need not heed you — but that's what elections are for).

Some of the first colonists of the nation for which the Constitution was written had been seeking to escape religious persecution. The constitutions of several of the states prohibited public support of religion (though some did explicitly support or demand adherence to Christianity). Above all, the many varying sects of Christianity in America required that to be fair to all, there could be preference to none. It would have been disgraceful for anyone to wish to leave the United States because of religious persecution. So the authors decided it best to keep the government out of religion. This is not to say that the United States was not or is not a religious nation. Religion plays a big role in the everyday life of Americans, then and now. But what the authors were striving for is tolerance... something I fear contemporary Americans are lacking.

As for the press, the authors regarded a free press as almost a fourth branch of government, constantly keeping tabs on the government's activities and actions. Though today's tabloid papers and television might give one pause, this kind of trash is a small price to pay to ensure that any news organization can rest assured that it can report freely on the activities of the government. Many other organizations in other nations have to worry about toeing the state's line or be shut down. How objective do you think a reporter can be when his life could be ended because of a critical story?

Go to this point in the Constitution.


Amendment 3 — Conditions for quarters for soldiers

According to the GPO, this is one of the least cited parts of the Constitution in federal case law. The only one the GPO does cite is an interesting case that is actually fairly recent (Engblom v. Carey [2nd Circuit Court]).

In 1982, a group of prison guards went on strike in New York. Some of these guards rented housing from the prison, in a building about a half mile from the prison. When the guards struck, the National Guard was activated by the Governor to take over for the guards. The quarters rented by the guards were used to house the soldiers. A pair of the prison guards sued the Governor and several other officials on the basis that the 3rd Amendment had been violated, and that they had been denied due process under the 14th Amendment. In state court, the claim was summarily dismissed.

On appeal and reappeal, the Circuit Court upheld the lower court's ruling, and found that the 3rd Amendment had not been violated for several reasons; primarily, they found that the rented apartments were not required to be used (unlike the apartment of, say, a building super), and that in no other way did the guards "own" the property the soldiers were housed in (this being a traditional test of whether someone's rights of property are being violated). On the question of due process, the Court had other opinions that you can research if you are interested.

Go to this point in the Constitution.


Amendment 10 — Powers of the States and People under Constitution

Note well this. Anything not expressly granted to the Federal government is reserved for the States or the People. Although this amendment is very liberally interpreted, it is one of the tenets of the Constitution. This amendment is also known as the States' Rights Amendment.

Go to this point in the Constitution.


Amendment 11 — Judicial Powers construed.

This Amendment was designed to prevent a citizen of one state from bringing suit against another state in federal court, modifying Article 3, Section 2, Clause 1. Over time, it has also been construed to prevent citizens of a state from bringing their own state to federal court. 11th Amendment law is in a resurgence in the 1990's as several Supreme Court cases make their mark (see the Current News Page).

Go to this point in the Constitution.


Amendment 14 — Due Process

This is one of the most used (and, perhaps, misused) parts of the Constitution. It came out of the Civil War. Basically, it says that all men 21 or older will be counted to determine representation in Congress, with a reduction in that count for anyone not allowed to vote; that no one in the Confederate government (or any future government of insurrection) may be members of the U.S. government (unless approved by a two-thirds vote); and that all debts incurred by the U.S. to fight the Confederacy are to be paid, but none of those incurred by the Confederacy would be.

It also states that no State shall make any law abridging the rights of any of its citizens without due process of law. The 14th Amendment is important, but the first clause is the most important. Prior to the 14th, states were free to ignore the Bill of Rights; a series of Supreme Court rulings made it clear that the Bill was to apply to acts of the Federal Government only. With the establishment of the 14th, the Bill, or at least parts of it, is made to apply to state law, too. This clause has resulted in some good law, such as the Voting Rights Act. But States' Rights proponents are opposed to the Amendment in parts and/or as a whole.

The Supreme Court, at first, did not allow the Due Process clause to be used to expand individual liberties (1870's and 1880's). Eventually, though, it was used to protect more than just former slaves. In the 1900's and 1930's, it extended the clause to the protection of workers against state regulations, allowing national standards for work conditions and minimum wage to be set. The due process clause has been used to extend most Bill of Rights Amendments to some extent, and is the basis for the "Right to Privacy" extended in the infamous Roe v Wade decision. For a discussion, see this document.

My opinion? Well, the Supreme Court, in the end, is the legal arbiter of Constitutional interpretation. What they say goes. In my research, I found some cases that I agreed with and some that I did not. In general, however, I can say that I feel that as long as those rights don't impinge on another individual's rights, the rights of the individual must outweigh those of the state, and the Due Process clause of the 14th Amendment guarantees that.

Note: some have tried to argue that because of the representation reduction clause and the implications on States' Rights, that the 14th Amendment is unconstitutional. However, since it is an amendment to the Constitution, it cannot possibly be unconstitutional. Some argue that it was passed in an unconstitutional way, which is an interesting and plausible argument. The fact remains, however, that it is a part of our Constitution, and deserves as much respect as any other part, unless it is at some point repealed.

Go to this point in the Constitution.


Amendment 16 — Income taxes authorized

On April 13, 2000, the organization We the People Foundation for Constitutional Education, Inc. sent delegates to the U.S. capital to present evidence that the 16th Amendment was not properly ratified. The evidence that We the People presented is available on their web site — this site will post updates when available.

Cecil, of the newspaper/online column called The Straight Dope, has done some research into some of the claims that the 16th was not properly ratified. His columns are online.

A very well-researched and literate "tax protester" FAQ has been published on the net. A good read for anyone contemplating a challenge to the income tax. There is also an organization called "Quatloos" that aims to expose all tax evasion scams (and there are quite a number of them). Visit them for more information.

Go to this point in the Constitution.


Amendment 25 — Presidential Disability

An interesting movie was made based on this amendment. Look for The Enemy Within with Forest Whitaker, Sam Waterston, and Jason Robards. It was a remake of 7 Days in May, which was made in 1964, before this amendment was passed. More recently, the 25th Amendment has gotten the attention of Hollywood writers. In the film Air Force One, the President's aircraft is hijacked and the Vice President is urged to declare the President incapacitated, though she ultimately resists the urging. In the world of television, 24 and The West Wing featured the 25th Amendment. In 24 the President refuses to attack three Middle Eastern countries that appear to have backed a terrorist nuclear explosion on U.S. soil. The Vice President assembles the Cabinet which narrowly votes to remove the President. In The West Wing, the President removes himself following the kidnaping of his daughter, fearing that he cannot make rational decisions about the response while he is more concerned with his role as a father.

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