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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.

See also Article 4, Section 2.

The 13th Amendment and the unratified Slavery Amendment mention slavery explicitly.


Q60. "Where may I find additional information on the evolution of Article 1 - Section 8 (Powers of Congress)...and specifically, 'To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.'"

A. This was included because under the Articles of Confederation, the states were permitted to coin their own money, which led to, at the least, confusion (though the federal government was able to set the value of gold and silver). This is addressed, briefly, in the Federalist Papers, number 42. See also number 44 for an explanation of Article 1, Section 10, which expressly forbids the states from coining money or issuing paper money.



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