- The Air Force
- Congressional Districts
- The Electoral College
- Executive Order
- Executive Privilege
- Freedom of Expression
- (Absolute) Freedom of Speech and Press
- “From each according to his ability…”
- Impeachment means removal from office
- Innocent until proven guilty
- It’s a free country
- Judicial Review
- Jury of Peers
- “Life, Liberty and the Pursuit of Happiness”
- Martial Law
- No taxation without representation
- Number of Justices in the Supreme Court
- “Of the people, by the people, for the people”
- Paper Money
- Political Parties
- Primary Elections
- Qualifications for Judges
- The right to privacy
- The right to travel
- The right to vote
- The separation of church and state
- The Separation of Powers Clause
- “We hold these truths to be self-evident”
- Other topics
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.
Congressional Districts divide almost every state in the United States into two or more chunks; each district should be roughly equal in population throughout the state and indeed, 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 concept of the presidential elector 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 term “College of Electors” is used in U.S. law, at 3 USC 4. For more on the Electoral College, see the topic page.
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.
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 was 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, where the Court deflected the case and sent it back to a lower court for further adjudication.
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, a term of art, 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.
The Constitution does protect the freedom of speech of every citizen, and even of non-citizens — but only from restriction by the Congress (and, by virtue of the 14th Amendment, by state legislatures, too). There are plenty of other places where you could speak but where speech can and is suppressed. For example, freedom of speech can be and often is restricted in a work place, for example: employers can restrict your right to speak in the work place about politics, about religion, about legal issues, even about Desperate Housewives. The same restrictions that apply to the government do not apply to private persons, employers, or establishments. For another example, the government could not prohibit the sale of any newspaper lest it breech the freedom of the press. No newsstand, however, must carry every paper against its owners’ wishes.
According to a 2002 Columbia Law School study, nearly two-thirds of persons polled thought that this phrase came from the Constitution or might have been crafted by the Framers. This phrase, however, originates from Karl Marx, and was written in 1875’s Critique of the Gotha Program. It is considered by many to be a brief summation of the principles of communism.
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 not involve itself in matters of religion. In fact, the original Constitution bars any religious test to hold any federal office in the United States. For more information, see the Religion Topic Page.
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 (see Article 2, Section 4). For any other impeachable officer (including judges), there are basically two punishments, which provide four options: the Senate 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 (see Article 1, Section 3).
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.
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.
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.
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.” Finally, the 7th Amendment requires that certain federal civil trials guarantee a jury trial if the amount exceeds twenty dollars.
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 gender, 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 gender, 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.