Answers From the FAQ, Page 8
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.
Q141. “When do you refer to the Constitution
with a capital C and when do you refer to it with a small C?”
A. Ah, an English usage question — I don’t get many of those.
Generally, when you’re speaking of any specific constitution, you capitalize
the word: the U.S. Constitution; the Vermont Constitution; the Iraq
Constitution. If you’re writing a paper about the U.S. Constitution, it would be
proper to refer to it as “the Constitution” in the text. If you’re speaking of
constitutions generally, as I have done a couple of times in this paragraph
already, you would use the lowercase word.
The confusion can come in when you are talking about a specific constitution
in a mix of specific and general terms. For example: “The Framers met in
Philadelphia to craft the Constitution.” or “The Framers met in Philadelphia to
craft a constitution.” Using “the” versus “a” changes which word you would
use.
Other words based on “constitution” should always be lowercase, such as
“constitutional” or “constitutionality.”
Q142. “What was the first constitution of the
United States?”
A. Some teachers, thinking they can be tricky with their students, will ask
this question. Don’t get me wrong, it is a good one, but you have to be careful
how you answer.
If the question says “What was the first Constitution of the United States?”
(note the capital C), then the answer is that there has been one and only one
Constitution of the United States, and it is the same one currently in
effect.
If, however, the question is posed as above, with “constitution” spelled with
a lowercase C, then the answer is more tricky. The Articles of Confederation would qualify as the first
constitution of the United States, where a constitution is defined as the most
basic document of the law. But the trick is that the Articles were never called
a constitution, at least not in the document itself, so you have to know enough
about the Constitution to know that it replaced something, and that that
“something” could be considered a constitution.
Finally, if the question is “What was the first constitution in the United
States?” (note the word “in” instead of “of”), then the answer has to be New
Hampshire’s first constitution, which was written by a congress that opened in
December 1775, and which completed its work on January 5, 1776.
Q143. “What are the duties of the Chief Justice
of the Supreme Court?”
A. The Chief Justice of the Supreme Court is only mentioned once in the
Constitution. The mention indicates that the Framers assumed there would be a
Chief, and that the Chief would have more to do than the one thing; but beyond
the one Constitutional duty, the Constitution is silent about the Chief. The
one thing, by the way, is buried in Article 1,
Section 3: the Chief Justice presides over any impeachment trial involving
the President.
That having been said, the Chief Justice does have other duties,
but they are by law, rule, or tradition, and not a part of the Constitution. In
the Supreme Court, the Chief has one vote, just like any other justice. If the
Chief is in the majority on any vote, he decides who writes the opinion of the
majority (this duty falls to the most senior justice of the majority if the
Chief is in the minority). The Chief begins questioning in oral arguments and
sits in the center of the array of justices in Court. He also is the “chair”
of the conferences the justices have in closed session. The Chief is the
person who traditionally swears in presidents at inaugural ceremonies. The
Chief is also the head of the federal judiciary, and is often at the phalanx
calling for things like raises for federal judges and more security in federal
courtrooms.
Q144. “When changes are made to the Constitution,
is anything added to the original document to show that something has been
changed or is now being omitted?”
A. The short answer is: No.
The Constitution is best read from start to finish. The Amendments supersede
anything to the contrary that came before the amendment. So, for example, when
slavery was abolished with the 13th Amendment,
all provisions of the Constitution that dealt with slavery became moot. But why
would this be? And why is there no official “abridged” version created after an
amendment?
It should be noted that this site, and others, do annotate the text of the
Constitution. But these annotations are not “official,” they are simply
supplied as a guide to the reader. The reason is that this is way some of the
Framers of the Constitution wanted it.
The first amendments to the Constitution were proposed by James Madison, one of the Framers, just
18 months after the Constitution was written and just barely a year after it was
ratified. Madison’s idea was that new provisions should be added into the text
and old provisions that were stricken or modified should be deleted or changed
in the text itself. Roger Sherman, another Framer, didn’t like the idea.
Sherman was opposed to a bill of rights, but said if there was to be one, they
should be added at the end. As a signer of the Constitution, he did not want
his signature on something he didn’t agree to. We have done it this way ever
since.
Not all constitutions are done this way. The Vermont
Constitution, for example, has two temporary sections: Section 75 authorizes
the Supreme Court to insert all amendments into the Constitution itself, adding,
changing, and deleting text as necessary. Section 76 authorizes the Supreme
Court to alter the text to be gender-neutral.
Q145. “What kind of paper was the Constitution
written on?”
A. Urban legend is that the Constitution, Declaration of Independence, and
Bill of Rights were written on hemp paper, hemp being the industrial name for
the fiber of the marijuana plant. For some reason, this “fact” is touted by
those who seek to legalize marijuana for recreational use. First, it is not
clear why the use of hemp as a fiber should mean it should be legalized for
recreational use. Second, the “fact” is not a fact.
The Declaration, the Constitution, and the Bill of Rights are currently
housed in the National Archives. All
three are written on parchment, not hemp paper. Parchment is treated animal
skin, typically sheepskin. The Declaration was inked with iron gall ink. The
Jet Propulsion Laboratory was commissioned to create a system to monitor the
physical status of all three. The Charters of Freedom Monitoring System took
digital photos of each sheet of parchment in 1987, each document divided into
one-inch squares. Over time, the photos are retaken and compared to the
original to look for signs of deterioration. Before the charters were recently
reencased for display, a small tear in the Declaration was repaired by adding
Japanese paper to the gap. This is the only paper in any of the documents. It
is, then, inaccurate to say that any of these documents was written on hemp.
It is likely, however, that drafts of the documents were written on paper
made from hemp. In that period, most
paper was made from hemp or flax and a mixture of recycled rags and
cloth.
Q146. “Your page on the Articles of Confederation says that there are no
more confederations existing in the world. I beg to differ — Switzerland
is a confederation.”
A. There have not been many confederations in the past two centuries or so,
and the main reason is that governments are not very willing to share power in
the way that they have to to have a successful confederation. One text book
I have lists just three: the United States (1781-1787), Germany (1815-1866),
and Switzerland (1815-1874). Europe has some of the traits of a confederation,
but until the “national” parliament acquires more power, it can’t be called
one. The wider acceptance of the euro and the wider ratification of the
European Constitution would also help. The United Arab Republic tried be a
confederation, but only lasted from 1958-1961.
As to Switzerland, it is officially known as a confederation: its official
name is in Latin, Confoederatio Helvetica, to avoid preference to any of
the three main languages. It is a federal republic, much like the United
States in many ways, with 26 small cantons in the place of states. Under the
Swiss constitution, the cantons hold all powers not delegated to the federal
government, but the most important powers of a nation, economic and military,
are reserved to the federal government, and preclude calling Switzerland a true
confederation, despite the name. The CIA
Factbook lists Switzerland as “formally a confederation, but similar in
structure to a federal republic.”
Q147. “I read somewhere that Moses, Jesus, and
Mohammed are depicted in the Supreme Court. Is this true? Does this violate
the separation of church and state?”
A. There is a frieze in the Supreme Court building that depicts Moses and
Mohammed, but not Jesus. The frieze, which is a sculpture installed in a wall,
were sculpted by Adolph Weinman in 1932. Weinman sculpted 18 people through
history who have had an impact on our concept of law, as well as allegorical
figures depicting some great legal concepts. This information was collated from
the Supreme
Court web site.
Allegorical figures: Fame, authority, light of wisdom, history, philosophy,
equity, right of man, liberty, and peace.
The lawgivers: Menes (first king of the first dynasty of Egypt); Hammurabi
(king of Babylon, creator of the Code of Hammurabi); Moses (shown holding the
Ten Commandments); Solomon (king of Israel); Lycurgus (legislator of Sparta);
Solon (lawgiver of Athens, codified and reformed Athenian law); Draco (first
lawgiver of Athens); Confucius (Chinese philosopher); Octavian (first emperor
of the Roman Empire); Justinian (Emperor of Byzantine, father of the Justinian
Code); Mohammed (shown holding the Koran); Charlemagne (Roman emperor, founder
of the Holy Roman Empire); King John (shown holding the Magna Carta); Louis IX
(King of France, creator of the first appeals court); Hugo Grotius (author of
the first book on international law); William Blackstone (English law professor
whose work influenced English and American law); John Marshall (Chief Justice
of the Supreme Court, 1801-1835); Napoleon (Emperor of France, influenced the
Napoleonic Code).
These depictions do not violate the notion of the separation of church and
state, because they are not an endorsement of religion. Rather, they are a nod
to the historical nature of each of these persons and their role in the legal
code we adhere to today, and make no commentary on the religions they
represent.
Q148. “In class today, we learned that the
Constitution had to be ratified by nine state conventions. Why conventions and
not votes by the people and why not by the state legislatures?”
A. There are good reasons why the Framers specified, in Article 7, that the Constitution was to be ratified
by conventions rather than directly by referenda or by the legislatures.
The Framers wanted the Constitution to be legitimate. It changed things
pretty drastically from the Articles of Confederation. The only way the felt
it could be truly legitimate was if the people agreed with it. The
legislatures of the states were chosen by the people of the states, and you
might think they would be a good way to ensure the people were heard. But the
Framers knew that state legislatures were, well, political. They had more on
their plates than this new constitution. Would the debate about ratification
compete with debates about taxation or criminal law or land rights? To keep
the debate on the document only, the debate had to be kept out of the
legislatures. Additionally, the new constitution was going to restrict the
powers of the states drastically, and some legislatures might be dead-set
against the Constitution from the beginning for that very reason.
Direct vote by people might have been an attractive alternative except for a
few issues. First, aside from the town meeting model used in a few New England
states, the entire body of the people never voted on anything in those days. It
is rare even today — few states have a referendum model today, California
being a notable exception. So there was no real precedent for the entire
populace to vote. Second, the Framers felt that the Constitution would best be
received if it was well-debated. In the days before mass media, it would be
hard for a reasonable debate to take place (some would argue in the days
of mass media, it is still hard to have reasonable debate). In a
convention, with manageable numbers of members, debate would be much easier.
Lastly, the issue of slavery was a sticking point. Would the Framers specify
the slaves could vote? Or freedmen? Or beyond the issue of slavery, landless
persons or even (gasp) women? By specifying conventions, each state’s own rules
for delegates and electors would be in place.
Conventions, then, were the best of both worlds. They represented the
people but did not include the unmanageable mass of the entire populace and
avoided sticky issues of eligibility.
Q149. “What are some of the weaknesses of the
Constitution?”
A. Of all the questions asked about the Constitution, this is actually one
of the most common — the most frequently asked. The problem with finding
an answer is that it is no simple question. If you asked an Anti-Federalist
what were some of the weaknesses of the Articles of Confederation, they may not
have been able to come up with a single one, but we can come up with many, given our historical
perspective.
That having been said, let’s discuss the weaknesses of the original
Constitution, unamended. First, it had no bill of rights. Bills of rights were
common in state constitutions at the time, but the Framers felt one to be
unnecessary and even dangerous to liberty. However, of all the arguments of the
Anti-Federalists, the lack of a bill of rights was one of the most compelling,
and the omission was quickly corrected. Second, the method of presidential
selection, with the first place candidate becoming president and the second
place candidate becoming Vice President, was flawed, mostly because the Framers
failed to foresee political parties. The flaws were spotted quickly, and fixed
with the 12th Amendment.
I consider the protection of slavery to be a major flaw. The Constitution
probably could not have been a success without some protections for this
infamous practice, but it didn’t really do anything to make things any better.
At the least, it could have mandated a phase-out of slavery over several
decades.
Some consider the vagueness of some constitutional provisions to be a flaw
— others consider that a feature. Regardless, there are places where the
Framers could have been more clear, but usually those are evident only in
hindsight. You can see what some others have felt are weaknesses by looking at
how some have wanted to replace or amend the Constitution.
Q150. “There has been a lot of talk in the news
lately about ‘presidential signing statements.’ What are they and where are
they in the Constitution?”
A. A presidential signing statement is a document that the President
attaches to a bill as he signs it, officially making the bill a law. The statement, which has relatively long
history, can be anything, from a note adding the President’s thoughts about a
law to one completely disagreeing with the law (making the signing statement an
alternative to a veto). The signing statement has become news lately because
President George W. Bush has attached signing statements to bills that have
said, in essence, I acknowledge this bill, but I reserve the right to not
follow the law in some instances once I sign it.
There is no provision in the Constitution for a presidential signing
statement. These statements are “extra-legal,” meaning they exist outside the
context of the Constitution. There is nothing to say they can or should be
attached — but there is also nothing saying they cannot be. However, the
Constitution is clear that the President will carry out the laws passed
by Congress. There is no wiggle room in Article 2,
Section 3.
So what good is a signing statement, especially one that says the president
might not follow the law? That remains to be seen — there have not been
any Supreme Court cases dealing with signing statements, let alone
contradictory ones. However, given the explicitness of the Constitution, it
seems to me that any failure to carry out a law based on a signing statement
would not be looked upon favorably by the Congress or the courts.
It should be noted that if the President disagrees with a bill, the
Constitution provides a method for the bill to be challenged: the veto. As
noted above, a signing statement disagrees with the law has no effect on the
law. A veto is the only way the President can affect the bill, though if the
President feels a veto would not be politically expedient, a signing statement
might be used to express that disagreement.
Q151. “Rudy Giuliani seems to be running for
President in 2008. But in 2002, Giuliani was given an honorary knighthood by
Elizabeth II. I’m wondering if this would place a restriction upon his
candidacy?”
A. The relevant part of the Constitution is Article 1, Section 9, Clause 8, which states: “No
Person holding any Office … shall, without the Consent of the Congress,
accept of any … Title, of any kind whatever, from any King, Prince or foreign
State.” Basically, no one in the government is to take any present, gift, or
title from any foreign power.
The first issue is that Giuliani is not a part of the U.S. government
— and the Emoluments Clause is pretty clear that it applies to current
employees of the government. The Plain Meaning test would probably let Giuliani
slide by if he had a title; but a sitting President would be barred from
accepting the title.
However, the Emoluments Clause does have a caveat — the acceptance can
be authorized by Congress, and Congress has done just that. In 5 USC 7342,
Congress authorized the acceptance of “order[s], device[s], … [or] award[s]”
from foreign governments, so long as they are authorized by the employee’s
department and are of minimal real value. In this code, the President, Vice
President, and all members of Congress are considered employees, as are spouses
and soldiers.
Generally, titles bestowed upon foreign governments are honorary only,
especially within the United States. Many people in government and in private
life have been given titles, such as Bill Gates, Ronald Reagan, George H.W.
Bush, Norman Schwartzkopf, Wesley Clark, Jerry Lewis, Bob Hope, Collin Powell,
Tom Foley, and Charlton Heston.
Q152. “Why did the Convention take place in
Philadelphia?”
A. An excellent question. Of course, there was no Washington, D.C. at the
time — that plot of land was mostly a swamp. But there were cities other
than Philadelphia. The Congress was meeting in New York City at the time of the
Constitutional Convention, so it might have
been a logical choice. Annapolis, Maryland, was another former home of the
Congress. Boston was also a major city of the time, a hub of commerce.
But Philadelphia was special. For one thing, it was the biggest city in the
United States at the time, and home to some of the new nation’s most prominent
citizens, including Benjamin Franklin. It had many features, some influenced by
Franklin himself: libraries, theaters, poets, newspapers, and magazines. It was
centrally located for most potential delegates (it is about as far from North
Carolina as it is from New Hampshire). It also hosted the Congress for a very
long time.
But it was also a hub of the American spirit — the birthplace of the
nation, where the Declaration of Independence was
signed. When the delegates to the Annapolis
Conference met and wrote up the recommendation for the Convention,
Philadelphia was specifically mentioned as the meeting place. The delegates to
that conference were not fools. They immediately lent gravitas to the
Convention by holding it in Philadelphia, and in doing so, attracted many of
the nation’s most prominent citizens.
Q153. “A friend of a friend is trying to convince
me that the United States’ three branches of government was modelled on the
Holy Trinity of Christianity. Is there any truth to this?”
A. No, there is no truth to it. I can, however, see how someone could come
to that conclusion. First, there are three in the Trinity and three branches.
To most, that’s just coincidence, but if you’re looking for
similarities, that one is glaring. Second, in the Trinity, each part is coequal
with the others; in theory, the same is true in the three branches. Third, the
Trinity is said to give Christian belief stability — and the three
branches have lead to a stable United States for over 200 years.
But these points are only “proof” if you see them and ignore all else.
There are many things that come in threes that it could be said the three
branches are modelled upon. Three legs of a stool, for example — all
equal, all providing stability. But the three branches is not based on the
design of a stool, either. The fact is that the concept of three branches,
legislative, executive, and judicial, was not new when presented at the Constitutional Convention. Several well-read
authors, including John Locke and Montesquieu, published books many years prior
to the Convention calling for such a separation of
powers. The experience of the United States under the Articles of Confederation showed that a single branch
was insufficient. At least some of the states had three branches of government
prior to the Constitution (Vermont, for example, established a Governor and
House of Representatives, and required courts be created in all counties).
In the end, the coincidence of the three in the Trinity and the three in the
branches of the U.S. government is just that — coincidence.
Q154. “I think that the citizens of the United
States are under the assumption that the Federal government actually prints
money, which is actually not a right that the federal government
has.”
A. The ability of the government to print paper money is certainly not an
enumerated right. Yet we all use U.S. dollar bills everyday. How is this
possible?
An original draft of the Constitution expressly permitted the government not
only to borrow money, as Article 1, Section 8,
Clause 2 notes, but also to “emit bills.” In Madison’s Notes from August 16, 1787, the subject
of paper money was debated at some length. Gouverneur Morris warned that if
paper money was allowed, “The Monied interest will oppose the plan of
Government.” John Mercer thought it unwise to “deny [the Government] discretion
on this point.” But others thought paper money was a deal-killer. George Read
likened the words, if included, to the “mark of the Beast,” and John Langdon
said he’d rather reject the entire plan than include the words. On a 9-2 vote,
the words were struck. So how is it possible for us to pay for anything with
paper money today? Shouldn’t all currency be coins with inherent value, like
silver and gold?
Gold and silver are not panaceas. Gold and silver coins have issues of their
own, and the evils of paper money were outweighed by the evils of manipulation
of purity and weights, not to mention convenience. By the Civil War,
“greenbacks” were issued by the government and used in all manner of commerce.
Not everyone liked this, and legal conflict ensued. The Supreme Court
eventually had to rule on the question. In Knox v Lee, 79 U.S. 457
(1871), the Court ruled that paper money was not unconstitutional: “The
Constitution nowhere declares that nothing shall be money unless made of
metal.” The Court argued that the Congress can manipulate the value of precious
metals to the point where it can be rendered as inherently worthless as paper
(the Congress could enact a law that says that 10-dollar silver coins weigh 400
grains in one year and 500 grains the next, effectively devaluing the silver).
The Court even noted the arguments of the Framers against “emitting bills,” but
wrote that the Framers, one, could not anticipate all governmental needs, and,
two, they allowed the Congress to do what was necessary and proper to carry out
its powers. In this case, that includes printing paper money.
So, said the Court, even though paper money is not expressly permitted by
the Constitution, it is also not expressly forbidden, and in spite of the
extra-constitutional opinions of some of the Framers, the ability to print
paper money is a necessary and proper power of the federal government.
Q155. “Who has more power, the Congress or the
President?”
A. Wow, such a small question with no small answer. It is a good question,
though.
Constitutionally speaking, the Congress is by far the most powerful of all
the branches of the government. It is the representative of the people (and,
originally, the states), and derives its power from the people. As such, it is
given power to do the people’s bidding and to rule over the people. It can set
taxes, can raise armies, can declare war, can suspend habeas corpus, can
impeach the President or judges, and can set laws touching the lives of every
person in the nation. This is a lot of power, and the framers made sure that
the power could not be wielded without balance.
The Congress itself has to agree between its two houses on every law; the
President checks the power of the Congress with the veto; the judiciary checks
the power with judicial review. Even with these checks, though, the Congress
is, on paper, the most powerful branch.
On paper, the President does not have a lot of power. He or she is the
commander is chief of the armed forces and has almost exclusive power over
foreign policy (though the Senate has to ratify any treaty and the Congress
always has the power of the purse to influence foreign policy). The President
also nominates judges and justices and maintains the cabinet, but these powers do not, in and of
themselves, seem very powerful. In practice, however, the President can be very
powerful, especially when the Congress and the President work together, such as
when the presidency and the Congress are held by a single political party. In
this case, it is common for the President to set policy that the Congress
merely rubber-stamps. In such a case, the President can be said to be very
powerful. The popularity of the President can also come into play — if
the President is very popular with the people, the Congress might not be
willing to challenge the President’s policies.
The answer to the question, then, depends on the context of the question.
The Constitution clearly makes the Congress the most powerful of the three
branches of government. Depending on the circumstances, however, the President
might have more influence on Congress than one would think based on the separation of powers outlined in the
Constitution.
Q156. “The Constitution never says that women
can’t vote. So why was the 19th Amendment necessary?”
A. The problem wasn’t that the Constitution prevented women from voting
itself. The problem was that the Constitution did not mandate that women could
vote. Since all the power in government was concentrated in men, and only men
selected those in government, there was little incentive for those in power to
call for women’s suffrage, even though any state could have granted women the
vote at any time. Wyoming, in fact, did grant universal suffrage when it was a
territory, in an attempt to attract more settlers, a right that carried over
when it became a state, long before the 19th
Amendment was passed. To get all of the states to grant the right, though
might have taken decades (some women, in fact, had called for women’s suffrage
at the same time black men were ensured of the right in the 14th Amendment). By motivating a movement for
women’s suffrage and affecting change with an amendment, all states had to
comply even if the power base was unwilling to do so on its own.
Q157. “Is it necessary for new states to ratify
the US Constitution in order for admission?”
A. When a state applies for admission, it is presumed that the very act of
application signals agreement with the Constitution in its current form. There
is no need for the state to specifically ratify it. It is conceivable that a
state might, as one of its first acts, pass a resolution explicitly stating
that it ratifies the Constitution or some other such language. This, however,
would have no effect on the Constitution itself.
Q158. “If an attorney is an officer of the court
— is it legal for attorneys to be members of Congress — since they
would then be serving in both the judicial and legislative branches of
government — or is it permissible to serve in two separate branches
concurrently?”
A. It is unconstitutional for a person to serve in two branches of the
government at once. However, a lawyer, being an “officer of the court”, is not
a member of the judicial branch in that sense, so a lawyer is not then barred
from being a member of the legislative branch solely because of that
profession. The Supreme Court ruled on a case like this in Cammer v U.S.
(350 US 399 [1956]) — if a lawyer is not an officer of court that can be
summarily tried for misconduct, it follows that a lawyer is not an member of
judicial branch, barred from serving in the legislative branch.
Q159. “Wikipedia says ‘The Electoral College
elected Washington unanimously in 1789, and again in the 1792 election; he
remains the only president to receive 100% of electoral votes.’ Yet your
Electoral College pages for those years show that other people got electoral votes. Can
you explain the discrepancy?
A. The electoral college can be divided into two parts — the pre-12th Amendment part and the post-12th Amendment
part. Before the 12th Amendment was passed, the members of the college cast two
ballots for president. They had to be for different people, and at least one
had to be from a different state than the elector. The winner was the person
with the most votes, and the vice president was the person with the second most
votes.
In the electoral college of 1788, every single elector voted for George
Washington on one of their ballots. There were eleven other vote-getters, with
John Adams garnering the most of the second ballots. This is seen as a
unanimous vote for Washington, then, because every elector voted for him
— there were 69 electors, and Washington got 69 votes. The other 69 votes
were scattered among the other eleven.
The same thing essentially happened in the 1792 electoral vote. There were
132 electors, and 132 votes for Washington. Adams got the bulk of the second
ballots, sharing them with three other men.
In no other pre-12th Amendment election did anyone get a vote from all of
the electors. In the post-12th Amendment world, where separate ballots for the
president and vice president are cast, there has never been an election where
any person received every single vote cast. The closest anyone has come in the
modern era is in 1936, when Franklin Roosevelt got 98.49% of the electoral
votes.
Q160. “In some blog posts lately, I’ve heard that
Hillary Clinton can’t be Secretary of State, but some other posts say she can
be because of the Saxbe Fix. What’s this all about?”
A. One of the concerns of the Framers of the
Constitution was corruption in government. One of the ways they used to
prevent corruption is the system of checks and
balances, but that’s a system-wide solution. They also knew human nature
and realized that they should prevent individual conflicts of interest whenever
they could. One basic example is the requirement that a Representative be a resident of the state they represent.
Another is the Emoluments Clause, also
known as the Incompatibility Clause and the Ineligibility Clause. This clause
has two parts to it. The first part says that no member of Congress can be
appointed to a position in the government that was created during the member’s
term in office. This was to prevent a person from creating a job for
themselves.
The second part is relevant to Clinton, and is where the Saxbe Fix comes in.
This part also says that a member of Congress cannot take a position in
government where the salary for that position was increased during the member’s
term. In Clinton’s case, she was a member of the Senate when the Congress
approved a raise in pay for the cabinet secretaries, including the Secretary of
State. It would seem, then, that this clause would prevent Clinton from taking
the job until her term expires.
Enter the Saxbe Fix. As you may imagine, this is not the first time a member
of Congress has been asked to take a position in the government, and raises in
pay for these positions, while not common, are not rare either. The fix is
this: Congress reduces the salary for the position in question to the pre-raise
amount. Then, the theory goes, there is no conflict, and no bar to the person
taking the position. The name stems from William Saxbe, who Richard Nixon
appointed to be Attorney General in 1973. Saxbe was a Senator from Ohio at the
time. The fix was devised by the acting Attorney General and passed by
Congress. The fix was also used by Howard Taft in 1909, for his Secretary of
State Philander Knox (though it was not called, of course, the Saxbe Fix in
1909). The Fix was also used by President Jimmy Carter and President George
H.W. Bush.
Constitutional literalists, or strict constructionists, feel the fix
violates the letter of the Constitution, which it surely does. However, the Fix
is in line with the spirit and intent of the Constitution, so satisfies those
who do not consider themselves strict constructionists.