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Answers From the FAQ, Page 5

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.

Q81. "In current usage, both the President and Vice President are elected on the same ballot. Does the Constitution as currently amended allow for these executives to be from differing parties?"

A. The Constitution neither prohibits nor encourages the two be from the same party. They are voted on separately in the electoral college, so theoretically, the President and Vice President could be from different parties. However, many states have laws which force their electors to vote for the candidates that the winning party has chosen. There is question about whether an elector could be prosecuted for doing whatever they want once the election is over, but the point is mostly irrelevant - the party that wins picks the electors, who are generally party loyalists, so are unlikely to vote against the party.

Q82. "To whom is the president required to tender his resignation? I think it is the Chief Justice but can't find out for sure."

A. This is not part of the Constitution, but of the U.S. Code (3 USC 20). The resignation is only valid in writing, signed by the resigner, when delivered to the Secretary of State. This rule applies to the President and the Vice President.

Q83. "If Clinton is impeached - does Gore have to resign? Who else would be included? Who would become President?"

A. If the President is convicted in an impeachment trial, the President is the only person who loses his office. The Vice President would become the President upon the conviction.

Q84. "Who was the person who actually wrote the words of the Constitution onto paper?"

A. Jacob Shallus, an assistant clerk of the Pennsylvania State Assembly, was paid $30 to transcribe the final draft of the Constitution.

Q85. "List the founding fathers who signed the Declaration of Independence and Constitution."

A. George Clymer, Benjamin Franklin, Robert Morris, George Read, Roger Sherman, James Wilson.

Q. "List the founding fathers who signed the Declaration of Independence and Articles of Confederation."

A. Samuel Adams, Josiah Bartlett, William Ellery, Elbridge Gerry, John Hancock, Thomas Heyward Jr., Samuel Huntington, Francis Lightfoot Lee, Francis Lewis, Thomas McKean, Robert Morris, John Penn, Roger Sherman, John Witherspoon, Oliver Wolcott.

Q. "List the founding fathers who signed the Declaration of Independence, the Articles of Confederation, and the Constitution."

A. Robert Morris and Roger Sherman. Elbridge Gerry attended the Convention but refused to sign at the very end.

Q86. "How much power does the VP have in the Senate? I understand he is the President of the Senate and can cast a vote only in the event of a tie."

A. The Vice President is the President of the Senate, and as such, has the power to preside over any session of the Senate. I'm not exactly sure how powerful that makes him, though the Rules of the Senate do grant the President a lot of procedural power. He does only have one opportunity to vote (to break a tie); and he is the presiding officer in any impeachment except that of the President.

Q87. "How long did it take to write the original Constitution?"

A. The question is not as straight forward as it might sound. The Constitutional Convention made many drafts and many revisions to the Constitution. Better, perhaps, to note when the Convention started, May 25, 1787; and when it adjourned, September 17, 1787, or 116 days.

Q88. "Can a sitting President be convicted of a criminal offense? Or, must he be impeached first, then tried?"

A. There is no easy answer to the question, as it is a matter of interpretation. I think most Constitutional scholars would agree that the notion of separation of powers prevents the President, and perhaps the Vice President, from being prosecuted in criminal court while in office. So for a conviction, the President would have to either be removed from office, or the trial would have to wait until his term expired. Where there is less certainty is if a sitting President can be indicted while in office. In 1999, there were rumors that President Clinton might be indicted by Independent Council Kenneth Starr while Clinton was still in office, but this never came about.

Q89. "If a President has civil litigation brought against him during his term in office must this be handled while he is in office? Or, can it be deferred until his term expires?"

A. A civil case can be deferred, and before 1997, most people would likely have guessed that any civil case filed against the President would be deferred. However, a Supreme Court ruling against President Clinton in 1997 allowed a civil case against him to proceed. The reasoning was that since the case against him concerned acts committed prior to his taking office, that the Presidency did not lend him a shield against such litigation. The decision would seem to leave in place the notion that a President cannot be sued for actions taken as President, protecting Presidents from frivolous lawsuits designed to tie up an administration's conduct of national business.

Q90. "How many words are there in the Constitution? How many are in the Declaration of Independence?"

A. There are 4543 words in the original, unamended Constitution, including the signatures. The Declaration has 1458 words.

Q91. "I have a history class and the teacher will give us extra credit if we can go to class tonight with the answer to this question... Technically, the U.S. Constitution is an illegal document... Why?"

A. The commission of the Constitutional Convention was to propose amendments to the Articles of Confederation. Instead, the Framers decided that not amendment but replacement was the best course. Technically, the Articles of Confederation could not be amended without the consent of each and every state in the United States. The Constitution, however, calls for ratification by only nine of the thirteen states. If the Constitution was an amending document, it would indeed have been illegal.

But the Constitution may be better called a document of revolution - it overthrew the confederation with a federation. The revolution, however, was bloodless and with the consent, eventually, of all of the states. Rhode Island and North Carolina were hold-outs in ratification, and they did not actually become parts of the new United States until after the U.S. had been operating for a short time - they realized the futility of trying to go it alone.

So, I suppose in some very technical ways, the Constitution was illegal for a short time; however, since it was accepted by all 13 states that made up the United States under the Articles, I'm not sure you could argue that it is still so.

Q92. "President Clinton has been accused of selling nuclear technology to China - how can we get him convicted of treason?"

A. First, it is interesting to note that treason is the only crime that is defined in the Constitution. Specifically, it is adhering to or giving comfort to the enemies of the United States. It can only be proven if the accused admits to it in open court or on the testimony of two eyewitnesses.

There are a few key issues here that strike at the heart of the "Clinton is a Traitor" war cry. First, the President did not sell any thing to the Chinese directly. There are allegations that the Chinese had a spy in the United States' nuclear weapons development facility at Los Alamos; one certainly cannot hold the President responsible for the acts of a spy. Other allegations are that the Clinton administration knew about the spy and did nothing about it. If this is true, holding the President responsible for the inaction of a subordinate seems unfair.

Another allegation is that the President authorized the sale of U.S. missile technology to China - but again, the President is not directly responsible for authorizing transfer of technology to other nations. There is government involvement, but the transfer was initiated by U.S. companies, not the U.S. government.

Finally, and this is the clincher: China is not an enemy of the United States, and hence there cannot be treason (this does not mean that laws were not violated, but treason was not committed). Some may argue that China is an enemy, and on the face of it, it may seem so. But China is a major trading partner, and one does not trade with one's enemies. China and the U.S. are cooperating, or at least trying to, on the question of North Korea. Enemies do not cooperate in this way. And the U.S. Code defines an enemy as a nation with which the United States is at war. That's it. We are not at war with China, either de facto or de jure. Hence, no matter what else is said, there is no treason (but, again, there could be violations of other laws).

Q93. "How is the Constitution a living document?"

A. The Constitution has been termed a "Living Document," but whether you think it is, or rather should be, depends on your interpretation of the Constitution itself. Through out time, the Constitution has been interpreted by many people; Presidents, Congress people, Judges, Justices, and plain folk like me. The fact that we are able to do this at all is where the phrase comes from.

Some believe that the Constitution is a whole document in and of itself, and that any further interpretation of its text is not only unnecessary but undesirable. However, my feeling is that the bulk of the people in the United States take a view that allows the Constitution to be interpreted to at least some extent. In interpreting the Constitution, it is said to grow, expand, adapt. In this way, it is like a living thing. It is able to take the external surroundings and change to suit them. These changes are most visible in the decisions of the Supreme Court.

For example, at one point, the Court ruled that separate institutions for black and white citizens were perfectly legal and constitutional, as long as the institutions were equal in power and efficacy - the "separate but equal" doctrine. In this century, the Supreme Court turned this doctrine on its ear by declaring that separate cannot mean equal, and segregation was unconstitutional.

Q94. "I searched your site and can't find out when inauguration day is!"

A. Inauguration Day is set in the 20th Amendment. For President and Vice President, the term ends, and the next term begins, on January 20th following an election. For Senators and Representatives, the terms end and the next begins on January 3rd following an election. The time between the election and Inauguration Day, by the way, is known as the Lame Duck period, particularly if the President was not reelected.

Q95. "Why has the Constitution endured the last two hundred years when many other countries' don't?"

A. There are lots of reasons, not the least of which being that the Constitution established a government that has served the people well and has protected the rights of the people. If either of these two goals had not been met, the Constitution we have today would have been replaced a long time ago.

Now, obviously, our government has a lot of room for improvement, and there are lots of issues that we face, such as Presidential power and campaign finances. And the rights of the people are not absolute, in law or in practice. Over time, many changes have been suggested, though in the end, few actual changes in the Constitution have become amendments. But when you look at the revolutions in nations since our own, it is clear that the people of America have led a relatively quiet existence with a relatively benign government. There have been times of unrest, to be sure, such as the Civil War, Reconstruction, the Depression, the Red Scares, Desegregation, etc., But even so, there has been no reason to drastically change the Constitution.

The brothers Collier, in Decision in Philadelphia (available on my Books Page) say the following are the reasons the Constitution has survived: it reflects the ideals of the American spirit; it recognizes human nature; it establishes a strong government; the rights of minorities are protected; and finally, it is not reflective of any particularly radical ideal or viewpoint, but rather a melding of many opinions and philosophies.

Q96. "What government body elects the President?"

A. The Electoral College votes for the President and Vice President. Whichever person gets the most votes for President becomes President, and whichever person gets the most votes for Vice- President becomes Vice President. It would, however, be inaccurate to call the Electoral College a government body. What you might be thinking of is that the votes of the College are opened in a joint session of Congress. If, at that time, there is no majority winner, the Congress chooses the winners (the House chooses a President, and the Senate chooses a Vice President). See the 12th Amendment for details.

Q97. "How many members of Congress are there?"

A. There are 100 Senators and 435 Representatives, so there are 535 members of Congress. The House has several non-voting members that are not included in the count (see the Members of Congress Page for a list of the current Congress). The number of representatives kept rising until a law was passed in 1911, locking the number of representatives to the number current at that time. That number was 435.

Q98. "The Constitution proscribes an 'enumeration' every ten years in a manner proscribed by law, but no more. Aside from telling how many persons in my household, the rest of the questions appear 'unconstitutional' and I shouldn't be required to answer them."

A. Article 1, Section 2, Clause 3 requires that the government conduct a census every ten years. This is an actual count of all the persons in the United States.

The census was fixed at April 1, 1980, and every ten years thereafter. This decennial census is to be a head-count. A mid-decennial census, taken in 1985 and every ten years thereafter, is to be taken, and sampling methods may be used. Only the decennial census is to be used in the apportionment of Representatives. (13 USC 141)

The questions have nothing directly to do with the Constitution. The government has the authority to ask the questions in line with its duty to conduct the census, as well as in line with its other powers. You are required, by law, to submit to the census (13 USC 221), and can be fined up to $100 for not answering any census question. Giving a willfully false answer is punishable up to $500. The law does not require you to disclose information about your religion.

More information about the Census can be found at the Census web site. Questions about the census forms are answered here.

Q99. "How many electors are there in total?"

A. Article 2, Section 1, Clause 2 provides that "Each State shall appoint ... a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." Based on this, we can easily determine the number of electors. The number of Representatives is fixed at 435 at this time. This is regardless of the number of states. The number of Senators is based on the number of states, two each - at this time, 100 total Senators. In addition, the 23rd Amendment provides the District of Columbia with the same number of electors as the state with the fewest electors - in other words, 3. 435 plus 100 plus 3 is 538 electors. When you hear commentators refer to the magic number of electors needed to win the Presidency, that number is 270, or half plus one.

Q100. "Recently, I read in my Constitutional Law textbook, that two framers of the Constitution served as Supreme Court chief justices. However, my professor and I could only recall one, John Rutledge. Who was the second framer that served as a chief justice? "

A. John Rutledge is the only framer who signed the Constitution who actually became a Chief Justice of the Supreme Court. Oliver Ellsworth, who succeeded Rutledge as Chief, was at the Constitutional Convention, but left a month prior to the signing. Other framers who served as Associate Justices were James Wilson, John Blair, and William Paterson

Note that Rutledge served only until his appointment came up for confirmation in the Senate, where his nomination was rejected, partly due to political considerations, and partly due to concerns about his mental health.

The William Johnson who served as a Associate Justice in 1804 was not the same William Johnson who signed the Constitution.

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