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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 their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." The total number of Representatives is set by 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.



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