A
lot of people presume a lot of things about the Constitution.
Some are true, some are not. This page will detail some
of the things that people think are in the Constitution,
but are not.
Innocent
until proven guilty
First,
it should be pointed out that if you did it, you're guilty,
no matter what. So you're not innocent unless you're truly
innocent. However, our system presumes innocence,
which means that legally speaking, even the obviously guilty
are treated as though they are innocent, until they are
proven otherwise.
The
concept of the presumption of innocence is one of the most
basic in our system of justice. However, in so many words,
it is not codified in the text of the Constitution. This
basic right comes to us, like many things, from English
jurisprudence, and has been a part of that system for so
long, that it is considered common law. The concept is embodied
in several provisions of the Constitution, however, such
as the right to remain silent and the right to a jury.
The
right to privacy
The
Constitution does not specifically mention a right to privacy.
However, Supreme Court decisions over the years have established
that the right to privacy is a basic human right, and as
such is protected by virtue of the 9th Amendment. The right
to privacy has come to the public's attention via several
controversial Supreme Court rulings, including several dealing
with contraception (the Griswold and Eisenstadt
cases), interracial marriage (the Loving case), and
abortion (the well-known Roe v Wade case). In addition,
it is said that a right to privacy is inherent in many of
the amendments in the Bill of Rights, such as the 3rd, the
4th's search and seizure limits, and the 5th's self-incrimination
limit.
The
separation of church and state
The
phrase "separation of church and state" does not appear
anywhere in the Constitution. Thomas Jefferson wrote that
the 1st Amendment erected a "wall of separation" between
the church and the state (James Madison said it "drew a
line," but it is Jefferson's term that sticks with us today).
The phrase is commonly thought to mean that the government
should not establish, support, or otherwise involve itself
in any religion.
Impeachment
means removal from office
The
word "impeachment" and the phrase "removal from office"
are not synonymous. For a President, judge, or other federal
official to be removed from office against their will (because
resignation is always an option), they must be impeached.
Impeachment consists of three phases - the passage of the
impeachment by the House, a trial by the Senate, and the
imposition of a penalty if the Senate convicts. For members
of the executive branch, removal from office is automatic
upon conviction. The Senate may also decide to prevent the
person from holding any other public office. For any other
impeachable officer (including judges), there are basically
two punishments, which gives them four options: they can
do nothing; they can remove the person from their office;
they can prevent the person from ever holding any office
in the federal government again, or both.
Executive
Privilege
Executive
privilege is a right to withhold information from the legislative
and judicial branches by the President or by one of the
executive departments. There is question of whether the
right exists at all, a question that has lingered since
the very first President, George Washington, asserted executive
privilege in his very first term. Most times, executive
privilege is asserted for purported national security reasons.
Washington, however, asserted the privilege when the House
requested details of the Jay Treaty - his rationale is that
the House has no role in treaty-making and hence no right
to request the documents. In modern times, Bill Clinton
refused to simply comply with an order to appear before
a grand jury, and instead negotiated terms under which he
would appear. Richard Nixon's is the most infamous use of
executive privilege, and while the Supreme Court, in U.S.
v Nixon, 418 U.S. 683 (1974), recognized that there
exists a need for some secrecy in the executive branch,
but that the secrecy cannot be absolute. The Court ordered
Nixon to turn over tapes and documents that a special prosecutor
had subpoenaed. More recently, the minutes and records of
Vice President Dick Cheney's energy task force were requested
and denied based on executive privilege. This case made
its way to the Supreme Court, but is still active.
Life,
Liberty, and the Pursuit of Happiness
This
phrase is commonly attributed to the Constitution, but it
comes from the Declaration of Independence.
Of
the people, by the people, for the people
This
phrase is commonly attributed to the Constitution, but it
comes from the Gettysburg Address.
The
Right to Vote
The
Constitution contains many phrases, clauses, and amendments
detailing ways people cannot be denied the right to vote.
You cannot deny the right to vote because of race or sex.
Citizens of Washington DC can vote for President; 18-year-olds
can vote; you can vote even if you fail to pay a poll tax.
The Constitution also requires that anyone who can vote
for the "most numerous branch" of their state legislature
can vote for House members and Senate members. Note that
in all of this, though, the Constitution never explicitly
ensures the right to vote, as it does the right to speech,
for example. This is precisely why so many amendments have
been needed over time - the qualifications for voters are
left to the states. And as long as the qualifications do
not conflict with anything in the Constitution, that right
can be withheld. For example, in Texas, persons declared
mentally incompetent and felons currently in prison or on
probation are denied the right to vote.
Judicial
Review
We
often hear about the Supreme Court striking down a law or
a provision in a law, or, more often, reaffirming some law
or provision. Take a look in the Constitution - judicial
review, as this is known, is nowhere to be found. It seems
like a perfectly normal action - after all, what kind of
check does the Judicial Branch have on the other two branches
if laws and orders cannot be declared unconstitutional.
But judicial review is not specifically mentioned. So how
did judicial review come to be? In the landmark case of
Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice
John Marshall declared a federal law, the Judiciary Act
of 1789, to be unconstitutional, and thus null and void.
This was the first time a Supreme Court ruling overturned
a law.
Political
Parties
Political
parties are such a basic part of our political system today,
that many people might assume the Constitution must at least
mention parties in one way or another... but there is absolutely
no mention of political parties anywhere in the Constitution.
In fact, in the times of the Articles of Confederation,
there weren't even any parties; factions, perhaps; regional
blocs, yes; but no parties. Not until the Jackson and Van
Buren administrations did organized parties really take
hold in the American political system.
Congressional
Districts
Congressional
Districts divide almost every state in the United States
into two or more chunks; each district should be roughly
equal throughout the entire country. Each district elects
one Representative to the House of Representatives. The
number of districts in each state is determined by the decennial
census, as mandated by the Constitution. But districts are
not mentioned in the Constitution. The United States Code
acknowledges districting, but leaves the "how's" to the
states (gerrymandering, however, is unconstitutional [as
seen in Davis v Bandemer, 478 U.S. 109 (1986), though,
the intent of gerrymandering is difficult to prove]).
The
Right to Travel
As
the Supreme Court notes in Saenz v Roe, 98-97 (1999),
the Constitution does not contain the word "travel" in any
context, let alone an explicit right to travel. The presumed
right to travel, however, is firmly established in U.S.
law and precedent. In U.S. v Guest, 383 U.S. 745
(1966), the Court noted, "It is a right that has been firmly
established and repeatedly recognized." In fact, in Shapiro
v Thompson, 394 U.S. 618 (1969), Justice Stewart noted
in a concurring opinion that "it is a right broadly assertable
against private interference as well as governmental action.
Like the right of association, ... it is a virtually unconditional
personal right, guaranteed by the Constitution to us all."
It is interesting to note that the Articles of Confederation
had an explicit right to travel; it is now thought that
the right is so fundamental that the Framers may have thought
it unnecessary to include it in the Constitution or the
Bill of Rights.
Executive
Orders
Executive
Orders have two main functions: to modify how an executive
branch department or agency does its job (rule change) or
to modify existing law, if such authority has been granted
to the President by Congress. Executive orders are not mentioned
by the Constitution, but they have been around a long, long
time. George Washington issued several Presidential Proclamations,
which are similar to EO's (Proclamations are still issued
today). EO's and Proclamations are not law, but they have
the effect of statutes. A typical modern Proclamation might
declare a day to be in someone's honor. Historically, they
have had broader effect, such as the Emancipation Proclamation.
A typical EO might instruct the government to do no business
with a country we are at war with. Executive orders are
subject to judicial review, and can be declared unconstitutional.
Today, EO's and Proclamations are sequentially numbered.
The average president issues 58 EO's a year. As of March
13, 1936, all EO's must be published in the Federal Register.
The first to have been so published was #7316, by President
Roosevelt.
Number
of Justices in the Supreme Court
Article
3, Section 1 specifies that there will be a Supreme Court,
Article 1, Section 3 mentions the Chief Justice, and Article
2, Section 2 mentions the "Judges of the Supreme Court",
but aside from these small mentions, the make-up of the
Supreme Court is not defined in the Constitution. There
will be a Supreme Court, there will be a Chief Justice,
and there will be other Justices - but how many? Originally,
there were six members, and the number has fluctuated up
to as many as ten. In 1869, the number was set in the law
at nine, and it has remained at nine ever since. The number
of justices is now set in the U.S. Code at 28 USC 1.
Qualifications
for Judges
Article
1, Section 2 specifies the qualifications to be a Representative,
Article 1, Section 3 specifies those for Senators, and Article
2, Section 1 those for President. The 12th Amendment adds
the Vice President. But no where does the Constitution specify
how federal judges are to be qualified. There is no minimum
age and no residency requirement. The primary reason for
this is that the Framers were well aware of how judges became
judges - they were appointed because they excelled at the
law. To do that, you must have had at least a minimum of
knowledge in the law (though in the 18th and 19th centuries,
lawyers were often self-taught).
No
taxation without representation
The
battle cry "No taxation without representation!" was a great
political slogan coined to counter the Sugar Act of 1764.
In order to help recoup the debt it incurred during the
French and Indian War (or the Seven Years' War), the British
Parliament passed the act, which taxed all manner of foodstuffs
imported into the colonies. The Americans, in the midst
of economic depression following the war, were not particularly
enamored of a new tax. Some have written that the Americans
were simply whining tax evaders. The slogan was good for
rallying the troops with an easy issue for every one to
discern: that since they were not represented in Parliament,
the tax should not be levied. However, the ultimate goal
of most of the agitators was not representation in Parliament,
but independence.
The
concept of "no taxation without representation" may be present
in general in the United States. But those who are unrepresented
(such as convicts and immigrants who cannot vote) are still
subject to taxation. Notably, the citizens of Washington,
DC, do not have representation in Congress (since 2000,
DC license plates have included the phrase "Taxation Without
Representation" in an effort to raise awareness of the issue,
especially among tourists visiting the city). By virtue
of the 23rd Amendment, however, DC does have at least three
electoral votes.
Slavery
Originally,
the Framers were very careful about avoiding the words "slave"
and "slavery" in the text of the Constitution. Instead,
they used phrases like "importation of Persons" at Article
1, Section 9 for the slave trade, and "other persons" at
Article 1, Section 2 for slaves. Not until the 13th Amendment
was slavery mentioned specifically in the Constitution.
There the term was used to ensure that there was to be no
ambiguity as what exactly the words were eliminating. In
the 14th Amendment, the euphemism "other persons" (and the
three-fifths value given a slave) was eliminated.
The
Electoral College
The
concept of presidential electors is certainly in the Constitution,
but never is the group of people collectively referred to
as "The Electoral College." Article 1, Section 2 speaks
of "Electors," as do several of the Amendments, but never
the college itself. The term comes from common usage in
the early 1800's, in the same way that the "College of Cardinals"
elects a pope, and is based on the Latin word collegium,
which simply refers to a body of people acting as a unit.
The "College of Electors" is now used in U.S. law, at 3
USC 4.
Jury
of Peers
People
often say "I have a right to have my case heard by a jury
of my peers!" when there is no such right in the Constitution.
The Constitution does take up the issue of juries, however.
It is the nature of the jury which is not in the Constitution.
In Article 3, Section 2, the Constitution requires that
all criminal trials be heard by a jury. It also specifies
that the trial will be heard in the state the crime was
committed. The 6th Amendment narrows the definition of the
jury by requiring it to be "impartial." Note that no where
is a jury "of peers" guaranteed. This is important for some
historical and contemporary reasons. Historically, the notion
of a peer is one of social standing - in particular, in
a monarchy such as the one the United States grew up from,
commoners would never stand in judgement of lords and barons.
Along these same lines, since suffrage and jury service
have always been closely tied (and in the beginnings of
the United States it was typical for only white, male, property-owners
to be allowed the vote), any combination of sex, race, and
economic status would be judged by only one kind of jury,
hardly by "peers."
Today,
the American ideal dictates that we are all peers of one
another, that regardless of sex, race, religion, social
status, or any other division (except age), we are all equal.
In this ideal, since we are all peers, a guarantee of a
jury of ones peers would be redundant. While some argue
with this ideal, it is the most democratic way to approach
the subject. Juries need only be impartial, and not made
up of one's peers, else the jury system would be unworkable.
Marriage
In
2004, a lot of controversy began to swirl around the topic
of marriage as homosexual marriage entered the news once
again. In 1999, the Vermont Supreme Court ordered that the
state must make accommodations for gay unions, bringing
the issue into the public eye. Vermont created civil unions
as a result. In 2004, the Massachusetts Supreme Court went
a step further, and ruled that the state must accommodate
not just an institution equal to marriage, as civil union
was designed to be, but that gay marriage itself must be
offered in the state. Subsequently, mayors in New York and
California to offer gay marriage in their towns and cities,
citing civil rights concerns. Those opposed to gay marriage
began to urge that an amendment to the Constitution be created
to define marriage as being between a man and a woman only.
Opponents of the amendment pointed to the failed Prohibition
Amendment as a reason why such social issues should stay
out of the Constitution. In the absence of any such amendment,
however, marriage is not mentioned in the Constitution at
any point.
The
Air Force
The
Constitution was ratified in 1787, long, long before the
advent of the airplane. It provides, specifically, for a
navy and an army in Article 1, Section 8. Though they were
aware of lighter-than-air flying craft, the Framers could
not have reasonably provided for an Air Force. It should
be noted at the outset that the Constitution does not provide,
specifically, for the other uniformed services, the Marines
and Coast Guard. The Marines, however, as an arm of the
Navy, could be excepted; and the Constitution does provide
for "naval forces," and the Coast Guard could thus be excepted.
How, then, do we except the Air Force? The first way is
via common sense - the Framers certainly did not intend
to preclude the use of new technology in the U.S. military,
and because of the varied roles of the Air Force, it makes
sense for it to be a separate branch. The second (and less
desirable) way is historical - the Air Force originated
as the Army Air Corps, an arm of the Army, similar to the
Navy/Marine relationship. Basically, unless your interpretation
of the Constitution freezes it in 1789, the Air Force is
a perfectly constitutional branch of the U.S. military.
Primary
Elections
The
Primary Election season can be exciting and heady as candidates
for the presidency, and other national and state offices,
vie for their party's endorsement and spot on the ballot.
Many people today assume that because the process is second
nature that it must be spelled out in the Constitution.
No where in the Constitution, however, will you find any
mention of how elections should be conducted. Since the
Constitution is silent on the issue, we have been free to
develop any system we wished, and the result is the system
of primary elections we now use. Though the party elections
do nothing more than choose a candidate for the "real" election,
the courts have still exerted influence, reasoning that
through primaries, disenfranchisement can be effected. Party
elections, then, must be open to anyone asserting party
affiliation - parties cannot, for example, bar any person
of color solely on the basis of race. Since they are party
elections, however, the Supreme Court has ruled that primary
elections can bar voters not registered with that party.
Martial
Law
The
terms "martial law" or "law martial" are not mentioned anywhere
in the Constitution, but a key aspect of martial law, the
suspension of habeas corpus certainly is - Congress cannot
suspend habeas corpus except in times of rebellion or when
public safety requires it. This clause, found at Article
1, Section 9, is often taken as shorthand for martial law,
but in reality, martial law can exist while habeas corpus
is in place - the two are commonly linked, but not mutually
exclusive. More details can be found on the Martial Law
Topic Page.
It's
a free country
A
commonly heard mantra is, "Read your Constitution - it's
a free country, you know!" Well, read your Constitution
- it never says it is a free country. The implication of
the aphorism is that in the United States, you can do whatever
you want to do, and the Constitution is there to ensure
that. It is certainly true that the Constitution protects
many civil rights. The 1st Amendment ensures freedom of
religious choice and freedom of speech, but those things
are not without limit. You cannot create a religion that
allows you to kill someone without civil punishment; you
cannot use libelous or slanderous words without recourse.
There are other things that restrict freedom - from the
ability to suspend habeas corpus to the issuance of patents.
Certainly the United States is a very free country, but
it is not totally free - which is actually a good thing,
unless you actually like anarchy. It is interesting to note
that in his confirmation hearings in 2005, John Roberts
said several times, "It's a free country." It will be interesting
to see how this enters into his judicial philosophy on the
Court.
God
It
has often been seen on the Internet that to find God in
the Constitution, all one has to do is read it, and see
how often the Framers used the words "God," or "Creator,"
"Jesus," or "Lord." Except for one notable instance, however,
none of these words ever appears in the Constitution, neither
the original nor in any of the Amendments. The notable exception
is found in the Signatory section, where the date is written
thusly: "Seventeenth Day of September in the Year of our
Lord one thousand seven hundred and Eighty seven". The use
of the word "Lord" here is not a religious reference, however.
This was a common way of expressing the date, in both religious
and secular contexts. This lack of any these words does
not mean that the Framers were not spiritual people, any
more than the use of the word Lord means that they were.
What this lack of these words is expositive of is not a
love for or disdain for religion, but the feeling that the
new government should be involve itself in matters of religion.
In fact, the original Constitution bars any religious test
to hold any federal office in the United States.
The
Separation of Powers Clause
Though
it may be implied or even directly stated in some news reports,
blog postings, or web sites, there is no clause of the Constitution
that is called the "Separation of Powers Clause." This is
because there is no one clause that says "separation of
powers" or "checks and balances" or any other phrase that
is used synonymously. The concept of the Separation
of Powers is written into the first three articles of the
Constitution.
Freedom
of Expression
It
is often said that one of the rights protected by the 1st
Amendment is the freedom of expression. This site, in fact,
uses that term in its quick description of the amendment:
"Freedom of Religion, Press, Expression." But "expression"
is not used in the amendment at all. This term has come
to be used as a shorthand for three of the freedoms that
are explicitly protected: speech, petition, and assembly.
While the use of "freedom of expression" is ubiquitous in
this area of 1st Amendment study, it is important to note
exactly what "freedom of expression" refers to - let this
be such a note.
Other
topics
I
get a lot of notes from people with topics not in the Constitution.
I expand on suggestions as time permits. Before time permits,
here is a bullet-list of the topics that have been sent
to me, each of which I hope to eventually add a few notes
about:
- Constraints
on the people
- Education
- Student,
Animal, Gay, Lesbian Rights
- The
word "democracy"
- Abortion
- Age
discrimination
- Capitalism
DISCLAIMER:
I make
no claims for the accuracy of this information and express no personal opinion
on the matter. The information was acquired off the web and from authors (owners
of said pages) and other sources and described as "information"
and I wanted to pass it along to anyone who might find it interesting or otherwise
useful. I'd appreciate any feedback you'd care to share with me if you wish
to proceed in a civilized manner. If the work is yours please email me and
we can work something out.
I want to give the author the credit they deserve or remove the piece.
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