Preliminary thoughts on the United States Constitution

2005 November 3 for December 1^st

The Old Testament is, by page count, about three times as long as the New Testament so, since we are going through the Bible at a pace roughly dictated by pages, alternating between Old and New Testaments, we will run out of the New long before Old. Even though we will probably go through the New Testament twice (being Christians, after all) this will still leave us with some imbalance.

This series is motivated by a careful examination of the premise "The U. S. Constitution, after the Bible, is the most perfect document known for the governance of mankind," or something to that effect. We have therefore always intended to examine both the Bible and certain of the United States state papers. Having now finished the first pass through the four Gospels and the Acts of the Apostles, we will now take a break before launching into Romans, the first of the letters of Paul that forms the basis for much Christian doctrine, to look at our Constitution.

By now, it should be clear that I do not think of any document, including these, as "perfect." Arguments of inerrancy of the Bible are seen to be, at best, irrelevant since we have no "original manuscripts" and at worst just plain wrong inasmuch as the main point of the Bible is clearly not factual perfection. The Constitution, as a document and as a collection of thoughts, will be seen to have similar issues.

This does not mean that I don't take them both seriously. I wouldn't be doing this in depth investigation if I didn't.

There are other state papers that I am considering for review at some later time, in particular the Declaration of Independence and the Federalist Papers, a collection of rhetorical arguments (speeches and newspaper columns) by the original authors of the Constitution made when they went on the road (what would now be the "talk show circuit") to sell it to the people. For this segment, however, we will only be considering the original Constitution and the twenty-seven amendments approved to date.

I will be working from a copy of the document available online at what seems like an official place:

http://www.house.gov/Constitution/Constitution.html

[Note:  2009 January 19.  The above link is broken.  Try http://www.archives.gov/exhibits/charters/constitution_transcript.html, http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html, and http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html.]

This prints out to 27 pages, so this particular review will be about the same length as a book of the Bible.

On the other hand, the Constitution is a totally different type of literature, so the approach will be different. With the Bible, I am essentially rendering the narrative into my own words and summarizing what I see as its major points. With the Constitution, I will be quoting Articles, Sections, and Clauses verbatim then explaining or commenting on them.

There are Constitutional scholars out there. I am not one of them. There are various types of construction ranging from strict to loose. I don't know where my observations will fall in that spectrum. There are many schools of thought on how the Constitution addresses various issues of current concern. My aim here is not to pitch any of these, or find ways to use the Constitution to back opinions I may have; my aim here, as with the Bible, is to see what it actually says. As a moderately well educated American citizen, it seems to me that I should be able to read the foundational document, the highest law of the land, and understand more or less what it is all about, what it demands from me, and what it does for me. I have no legal training; I am an engineer whose training is to think critically and logically, the chips falling where they may. Nonetheless, I do not believe that the Constitution is too mysterious for any but "experts" to understand or expound.

Every citizen of the United States of America is subject to the Constitution and every employee of the U.S. Government is sworn to protect, defend, and uphold it. You may not realize this but every military person or civil servant, from the Joint Chiefs of Staff down to the janitors at NASA has sworn an oath of allegiance to that affect, an oath more akin to that given by the President at his inauguration than to the Pledge of Allegiance.

This is a matter of life, death, and character therefore and so it begs the initial question, "What is a Constitution anyway?" Is it a piece of paper? A collection of real estate? A set of ideas or institutions? A group of people? A system of economics?

I hold that the "Constitution" is the basis of the social agreement that the people of the United States have with each other. If I ask, "What is the constitution of a car?" the answer will be a collection of metal and plastic, wiring and paint, glass and rubber, fluids and fuels, all precisely designed and fitted into a clever and convenient device for the purpose of providing transportation for people and goods. If I ask, "What is the makeup or the 'constitution' of the United States of America?" the answer will be a collection of people and institutions, places and agreements, abilities and character, a superior human compact, a statement to the past, the present and the future, and to the rest of the world about who we are, how we act, and what is important to us. This document describes and legally codifies those agreements and makes some of those statements.

Although the original Constitution is an important artifact to us, it is not the actual piece of paper that really counts. Although the wording of the Constitution is important it is not even the words themselves that are important. The important thing about the Constitution is the ideas about how people live together in a country collected from several individual states, how they exercise power and where it derives from, how they maintain themselves and how they behave within a larger world.

Tomorrow, then, we will start looking at the document that defines who we are as the people of the United States of America. Perhaps we will learn something more about who we really are.

U.S. Constitution Preamble and Article I 2005 November 5 for December 2^nd

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

This initial paragraph is known as the "Preamble" and is the portion memorized and studied by every school child in the country. Several things are worth noting.

- We are preserving the 18^th century spelling, capitalization and usage.

- The term "United States" is used throughout as an adjective and noun, not as a proper title the way we use it today. The equivalent thought is, "The States that are United."

- "… form a more perfect Union…" The collection of independent states that had been British colonies before the Revolutionary War had tried another system of collective government before this one, and failed.

The purposes for this higher-level government are stated:

- justice

- domestic tranquility

- common defense

- general welfare

- maintain liberty from now on.

A "strict constructionist" would say that these are the only purposes of a national level government and that all other lawmaking is under some other jurisdiction, normally that of the individual states.

A "loose constructionist" would say that these are just the initial and general goals of the national government, which can expand further as needed.

In either case, the purview of this national government is to make a consistent system of justice, keep the peace, defend the collective, and help everyone thrive.

Although we take liberty for granted, this was a new and historically rare concept at the time of this writing. Prior personal liberties, if any, had been at the pleasure of monarchs.

Article I

Section 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Legislative power is the power to make laws. Notice that no President or Supreme Court is mentioned here. The right to make laws is solely in the Congress, which consists of two houses, to be defined further.

U.S. Constitution Article I Section 2. 2005 November 5 for December 5^th

Article I (continued)

Section. 2.

Clause 1: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

First, the makeup of the lower house is described. Members are elected every two years. The same people who are permitted to vote to elect members of the legislature of their own state (the lower house anyway, should there be some distinction in electoral qualifications) can vote for members of the national house also. This is direct enfranchisement of the actual populace, even at the national level. Other offices, as we will see, are not filled directly.

Clause 2: No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

This sets the personal qualifications for the actual representatives: minimum 25 years old, minimum seven years residency in the country, and current resident of the state they are running to represent. It is interesting that the language of this clause is in the negative.

Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

This establishes the concept of proportional representation, that is, that the number of members of the national lower house per state depends on the population of the state. Also, taxes are levied on the states by the national government in the same proportion. This is long before the Internal Revenue Service and long before the national government had the established power to tax citizens directly. I don't think the national government taxes states directly anymore.

This clause establishes the need for a national census every ten years to establish the proportions of the states, with the first such to be conducted within three years of the first meeting of the national Congress. This and the initial allotments have no impact on us today. If we still had one representative for every thirty thousand people today, the House would have ten thousand members. This initial House had 65 members, as enumerated here, implying that the national census at that time was around two million. Today's house is fixed at 435 members and is still proportional to population, though each state still gets at least one representative regardless of population.

Of course, what is most interesting about this is the way in which the census is counted. There are four classes of people, implying a strict social order:

- free, full count

- free, but bound to service for some period of time (employees), full count

- Indians not taxed, not counted

- Others, counted as three people for every five real people.

The more modern concept of "… liberty and justice for all" means, at least, a different sort of "all" here than it does today.

Though these distinctions are all overridden by later Amendments, they result from a compromise among the original authors. At the time there were "free states", in which most of the people were free, and "slave states" in which much of the commerce was built on involuntary slave labor. People from the free states felt that if the slave states counted all of their human population for representation purposes, they would be over-represented. People from the slave states realized, however, that there was such a small percentage of free people that they would be seemingly under-represented if they couldn't count slaves at all. The compromise was to count every five slaves as three people. These slaves had no right to vote themselves, even in that percentage.

Native Americans didn't count either way.

The term "slave" that we have encountered in the writings of Moses is more like "free but bound to service for some a Term of Years" than involuntary servitude as practiced in this and other countries in these times, nonetheless, the religious interpretation of the time was to equate and therefore distort the two usages of the term "slave." As for the natives, they were taken as uneducated, uncultured, and heathen and therefore unqualified for inclusion or participation. "Liberty" applies only to members of the club, it would seem.

So much for our "near perfect" document. Perhaps it is in its "as amended" form that it is near perfect.

Clause 4: When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

This just means that the states (i.e., not the national government itself) run the regular and special elections to keep the representative seats occupied. This is still true today. Each state sets up and runs its own elections, both for its own government and for the collective national government.

Clause 5. The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Nearly all institutions choose their own internal leadership. This is made official here.

Impeachment refers to the power to remove members and leaders from office. This says that only the House can start such proceedings

U.S. Constitution Article I Section 3. 2005 November 7 for December 6^th

Article I (continued)

Section. 3.

Clause 1: The Senate of the United States shall be composed of two Senators from each State; chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

We now move on to the constitution of the upper house or "Senate." It is said that this is the only institution in our government, state or national, that does not have representation proportional to population. It is by this device that it is acknowledged that the member states themselves have an interest in the national government.

The upper house in England is the "House of Lords" in which hereditary property owners serve. No such royal or quasi-royal status exists in our country, by design, so the upper house consists of representatives of the member state governments instead.

Note that in the original, the senators were chosen by state legislatures, not by direct election. This was changed by amendment later.

Clause 2: Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

As we saw yesterday, all members of the lower house are elected every two years. In theory, this gives the people greater short-term control over their Congress. Conversely, to provide greater continuity in government, senators serve six-year terms. The Senate is involved with longer-term matters such as relationships with other countries. This clause provides that a third of the senate stands for election every two years. This rotation also lends to greater continuity in that two-thirds of the senate sits out each bi-annual election.

Although it is not stated here, the classes are arranged so that the two senators from any particular state are not elected at the same time.

The procedure for the state governor to appoint replacements on recess vacancies is still used as was the case when governor Jesse Ventura in Minnesota appointed Dean Barkley in November 2002 to finish the term of the late Paul Wellstone. This action divided the Senate partisan makeup 49 to 49 during the remaining “lame duck” session, that is, until the new Congressional term began the next January.

Clause 3: No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

As with the qualifications for the lower house, this clause is all stated in the negative. You have to be a little older and have lived in the U. S. a little longer to be a senator than to be a member of the House, and you have to live in the represented state.

By implication the states themselves, by their election laws, set their own internal residency standards, thus, when Hillary Clinton moved to New York state and ran for senate, she had to have established a residence in the state several months in advance of the election in order to be a qualified resident.

Clause 4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

This is the first mention in the Constitution of any national executive. This is where it is prescribed that one of the Vice President's duties is to run the senate, when he so chooses. This is part of the collegial relationship that is supposed to exist between the executive and the legislative.

Clause 5: The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The President pro tempore mentioned here is the practical leader of the senate, at least as practiced today, and presides over the upper house as the Speaker presides over the lower. The Vice President will come in and preside if an important vote is expected to be a tie, a tie that he could break.

Clause 6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the Concurrence of two thirds of the Members present.

We begin to see the separation of powers here. Only the lower house can bring impeachment charges against a government official. Only the upper house can hold the trial and when they do, they are at some higher level of solemnity. Impeachment is analogous to criminal indictment. Even the President can be impeached and tried, as we have seen in the last decade, and when this happens none other than the Chief Justice of the United States presides.

These provisions are here because the authors (the "framers") of the Constitution had significant experience with corrupt powers and authoritarian rule. No elected official, not even the President, would be above removal. They wanted clean government with real consequences for misbehavior.

Clause 7: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This tells what impeachment is. It is the means of removal from office and removal of eligibility to hold office again. Impeachment does not include, nor does it preclude, criminal indictment, trial, conviction and punishment once the removal from office is complete. Note that sitting officials enjoy some immunity from laws, as we will see and discuss later.

U.S. Constitution Article I Section 4 - 5. 2005 November 7 for December 7^th

Article I (continued)

Section. 4.

Clause 1: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

This says in effect that the states themselves decide how and when to hold elections unless and until the national legislature decides to do something different. The belief here is that it is more beneficial to everyone if the states, being more local, make their own rules. But, there was a fear that this could become problematic and that the national government needed the power to take over if needed. Still, there was a fear that the national government would run amuck with such powers, so the election of senators is precluded. Perhaps this is all amended later as well. We'll see.

Clause 2: The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

If only they would meet only once a year! The actual date specified here was changed by amendment later.

Having established the two houses of Congress, we now proceed through specific powers and authorities.

Section. 5.

Clause 1: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

You can tell by the types of rules that organizations make the problems that have been encountered or that are feared. At first it seems unsafe to allow an elected body to be judge of their own elections, but in the case of the national Congress, the highest authority in the land, who else could it be? Whoever judges the elections and disciplines the members basically has the control.

Clause 2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Either house can get rid of a member without going through impeachment, by a super-majority. The rules that an organization makes under which it conducts itself are very important in that they determine indirectly what can be considered and how. If legislation never comes to a vote due to application of some rule, that rule has had a profound effect. This happens all the time. The fights over the rules are often more heated than the debates of substance.

The House of Representatives is operated today under "Roberts Rules of Order" as are most democratic organizations (that I am aware of, at least the low-end, volunteer ones). If I'm not mistaken, Roberts Rules of Order were invented for the U. S. House of Representatives.

Clause 3: Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Thus is established the Congressional Record. When the "Yeas and Nays" are counted, it is usually by roll call. This is a more exact way of establishing a count than a "voice vote" or "acclamation." If a matter is non-controversial and overwhelmingly favored, it is usually passed on a voice vote for efficiency, but when a roll call is taken, this clause requires the results to be recorded.

I wonder if "one fifth of those Present" ever declines to publish a vote?

As for the Congressional Record itself, much is “read” or placed into it by member motion. It is said that the only thing that saves the House of Representatives each morning is the motion to dispense with the reading of the previous day’s record, which would take, on average, sixty one hours.

Clause 4: Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

So, what has happened that caused a rule like this to be necessary?

One way to control the situation is to just not show up. This says that when Congress is meeting, they can't just do that. Also, they can't get together down at Joe's Bar and Grill and conduct business there. This is beginning to sound like the Mosaic Law for worship. Only worship God when and where he specifies.

I have firsthand experience to verify that rules such as these are a good idea. An organization in the process of making organizational decisions should do so in a formal way at an agreed time and place. Just because half of them happen to meet at a ball game doesn't mean that they should be permitted under the rules to conduct official business there and then.

U.S. Constitution Article I Section 6. 2005 November 8 for December 8^th

Article I (continued)

Section. 6.

Clause 1: The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Two matters are considered here together, pay and protection. Once again, whoever sets the salary of the representatives has a great deal of control over them so in this case again, the only institution that can be allowed to do this is the institution itself. As obviously dangerous as this is, it was doubtless hoped that public proceedings and partisan bickering and name-calling would prevent the members of Congress from conspiring together to abusively raid the national treasury.

The other part of this clause deals with protection from law enforcement officers and, perhaps, the military. Anyone with the power to arrest has great powers indeed, and to exercise those against members of Congress would be a threat to business. The Congress, therefore, has the power to discipline its own members rather than having lesser civil authorities do so. Exceptions are made for the worst crimes against the state. They don't want a congressperson to miss a vote due to a traffic stop, but felons and traitors must be stopped no matter who they are.

Clause 2: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

One of President Theodore Roosevelt's famous quotes was "Oh, to be President and Congress at the same time for only five minutes!" This clause prevents that sort of moonlighting. A congressperson has considerable power already and it is unfair and potentially dangerous to all the other citizens if it is combined with other national-level powers.

"Emolument" is compensation. It appears that the intent here is to prevent elected representatives from holding other government jobs and increasing their own pay for that other position while in office.

U.S. Constitution Article I Section 7. 2005 November 8 for December 9^th

Article I (continued)

Section. 7.

Clause 1: All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

This provision is more important than it looks. The intent is that legislation involving money can only originate in the lower house, which can be entirely recalled by regular voting every two years.

When I was in college studying this very document, the Senate originated a revenue bill and my professor was certain that it would meet a Constitutional court challenge as soon as anyone tried to carry it out. I don't know what ever became of that matter. There are many ways in politics to make something look like it was done properly even if it wasn't. Maybe the bill failed.

Clause 2: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approves he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

This is the means by which the President (first mentioned here) and Congress have some balance of power between them. Any bill, to become law, must be signed by the President. If he just ignores it, it becomes law anyway. If he objects, he returns it to Congress with objections that must be recorded. This is traditionally done by writing "veto" on the signature line. If both houses can get a two-thirds vote together, they can "override" such a veto. Such votes must be exactly tallied, with names.

Every Congressional session eventually adjourns "sine die" that is, "forever", not to convene again in that form. (Newly elected representatives will gather for the next session later.) After this happens, there is no one for the President to return objectionable legislation to. There are always bills pending in this period and if the President ignores them they fail and it is called a "pocket veto."

Clause 3: Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

This extends the above rules to any other matters before Congress important enough to require the agreement of both houses.

U.S. Constitution Article I Section 8. 2005 November 14 for December 12^th

Article I (continued)

Section. 8.

Now that we have seen how the two houses of the Congress are constituted and self-managed, we see in this Section the specific powers that the national Congress has. Later on there will be an amendment stating that all other powers are reserved to the states or the people themselves. Under "strict construction" therefore, these are all the powers that the U.S. Congress is permitted to have.

Clause 1: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

You will recall that the fight with England began over the issue of taxation, "taxation without representation" in particular. On behalf of the United States, the elected Congress is the only place where money can be collected or appropriated.

Clause 2: To borrow Money on the credit of the United States;

Also, the Congress has the only authority to use the credit of the country (or to set its credit limits, something that still happens all the time now).

Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

This document follows thousands of years of experience with national level governments, mostly monarchies, and it was recognized that there was a need for centralized control over matters of commerce. Sometimes found in the king, this power in the United States is held by Congress.

Clause 4: To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

Notice that the Constitution is not making the specifics of the laws. That is a much larger, much more detailed job. But, for matters like naturalization, deciding who can be citizens and how they become so, Congress has the power and the obligation to set forth the rules.

As for "uniform" laws, such as dealing with bankruptcies, the issue being addressed here is that such laws, inasmuch as they influence national commerce, should be the same across the states. They are saying that it should not be allowed to get a preferential bankruptcy deal by just going to a different state.

Clause 5: To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Of course, someone has to deal with means of exchange, currency, and standards of trade. This is the power to change the country to the superior metric system, should such a thing ever occur. The chairperson of the Federal Reserve Bank, who sets interest rates and determines the supply of cash money in circulation, works directly for Congress.

Clause 6: To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

You can't have concentrated material value, such as in currency without having strong temptation to cheat through counterfeiting. This clause establishes the power to create the Secret Service, which protects the currency (and the President).

Clause 7: To establish Post Offices and post Roads;

It is recognized here that national communication is essential to welfare and commerce (not to mention defense) and that this facility needs to be beyond the possibility of business failure or local control. The concept of "post roads" is not something we have encountered much in the last several decades, but at the founding of the country there were many places inaccessible by road. The very ability of a postal service to operate depends on the ability to transport mail. In the early stages this could mean building roads or improving trails specifically for use by postal carriers. Today, the post office buys space on trains and airplanes and has its own fleet of trucks.

Clause 8: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries;

Congress has the final say on how patents, trademarks, copyrights, and other such "intellectual properties" are handled nationwide. It was recognized then, as now, that without such protections, people who invent or discover could not survive economically up against those who develop and exploit.

Clause 9: To constitute Tribunals inferior to the supreme Court;

This is the first mention of a supreme Court, which will be set forth more fully in a later Article. Suffice it to say that there will have to be some "inferior" courts, and it is up to Congress to establish them.

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

The problem being addressed here is that someone, in the interest of international communication and commerce, must police and protect the seas from piracy and the like. It doesn't seem reasonable for a power like this to reside in individual states, particularly since there is a national government to regulate and provide a common face for international affairs and defense, so this duty is also consolidated at a national level.

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

The declaration and letters powers here all have to do with facing hostilities to the nation. Though it seems obvious to us now, it is a very important provision that only Congress has the right to declare war or make other shows of hostility on behalf of the nation, not the President or any officer in the military. Any military authority that anyone in the United States has derives directly from Congress.

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

It was considered dangerous (reasonably so) to maintain military forces for long periods of time. The Congress, which is accountable to the people every two years, has all of the military power, but they have to stay involved on at least a biennial basis.

Clause 13: To provide and maintain a Navy;

A Navy, though military and an expression of national power, is a special case by its nature.

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Again, all military authority begins with Congress.

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

The Congress has to act to create a fighting force, and the reasons for having a fighting force appear to be constrained to protecting against internal insurrections and external invasions. No mention here of coercing other countries all the way around the world in order to improve security, but the last two guys who ran for President here said in so many words that they would not be restricted in what they would do or when they would do it to provide protection for this country. They saw this as the President’s Constitutional obligation and prerogative.

Clause 16: To provide for organizing arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

There was a fear that centralized military power would be politically dangerous. This is a reasonable fear as demonstrated by the presence of military dictatorships worldwide. Congress has most of the power, but the States get to appoint the officers. I know that in military matters through the 18^th and 19^th centuries, rules such as this were used, but I don't know if they are applied today or, if so, how, or if not, why not. For example, to be a General in the Army or an Admiral in the Navy, do you have to receive an appointment from your state governor (or some state governor)?

Clause 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, byCession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; -- And

There was the question about where the national capital would be and the fear that if it were on the territory of any particular state, that that state would have too much influence and power. This clause gives authority to establish and govern the District of Columbia, which was removed (Ceded) from Maryland and Virginia.

They were specific about how large it could be. They didn't want D.C. to become another state.

Fear of too much central control makes it seem prudent to require state approval of any military installations.

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

This is a blanket clause meant to communicate that, of course, Congress has the power to do what it is Constitutionally directed to do. This, too, suffers from the entire range of constructions from too strict to too loose.

Notice what is not here. There is, for example, no mention of regulation of foods or drugs, no mention of exploration of space or of scientific research, foreign aid or universal retirement benefits, urban development or stabilization of world energy (oil) markets. Nonetheless, Congress has enacted all of these and much, much more, all presumably in the name of "carrying into execution the foregoing powers".

U.S. Constitution Article I Section 9. 2005 November 15 for December 13^th

Article I (continued)

Section. 9.

Clause 1: The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Probably a result of a compromise with the slave states, Congress is not permitted to do anything about importation of slaves for about a decade. At least it refers to the slave as a "Person".

There has been no need to amend this language in order to pass laws concerning slavery commerce since the specified date has passed.

Clause 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Habeas Corpus or "have the body" is the prohibition against officials holding a person without charges. In practice today, a citizen in custody must be charged with a crime or released within twenty-four hours. The United States does not extend this right to any but citizens and the words "public Safety" are stretched quite far in the present administration.

Clause 3: No Bill of Attainder or ex post facto Law shall be passed.

A "Bill of Attainder" is a law by which a person sentenced to death becomes immediately dead for purposes of law and has no more rights than a dead person. This applies also to ownership and inheritance.

We saw in Deuteronomy that a person should stand guilty of his own sins, not those of his parents, children, or other relatives. The practice of attainder was out of favor by the time this Constitution was written and was finally abolished even in England in 1870. It doesn't take much imagination to conjure cases of abuse and hardship resulting from such laws.

"Ex post facto" simply means that a law cannot be made retroactive.

Clause 4: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.

This clause prohibits an income tax levied on individuals. It does allow for states to be taxed in proportion to their populations. A Constitutional Amendment was therefore required to allow for the income tax, administered by the Internal Revenue Service, that we enjoy today.

Clause 5: No Tax or Duty shall be laid on Articles exported from any State.

By implication, imports can be taxed but not exports. This is probably intended to promote the competitive stance of local industry.

Clause 6: No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another: nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

Since a group of states is banding together to form a nation for various purposes of mutual benefit, it doesn't make much sense for them to place levies on each other concerning internal commerce. Of course, if it hadn't been explicitly prohibited, someone would have done it.

This is the reason why we don't pay state sales tax on items ordered through the mail from other states and is also why "interstate commerce" that is, business conducted in more than one state, is regulated by different laws than purely internal commerce.

Clause 7: No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

This makes it clear that only Congress, and only they by passing laws, can spend the nation's money, and that proper, public accounting will be used. Today there are many secret agencies in the government whose cost is classified inasmuch as knowledge of how much we spend on them would be compromising information in the hands of enemies. There must be some clause that overrides this one in those cases.

Clause 8: No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

One of the things that irritated citizens of this new country about the Old World was the whole system of nobility wherein a person, by virtue of who their family was, had greater or fewer rights than others. This clause reinforces the "all men are created equal" idea in the Declaration of Independence.

Furthermore, any national official being bought off by a foreign ruler is prohibited. Don't even bother to ask.

U.S. Constitution Article I Section 10. 2005 November 19 for December 14^th

These are the specific prohibitions on the states that make explicit what the national government reserves for itself, prohibits everywhere, or must consent to.

Article I (completed)

Section. 10.

Clause 1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

We have seen that the national government has the sole right to make war and currency for use in the country.

States are apparently allowed to make currency of silver or gold which is reasonable since these metals have high intrinsic value. It's when governments start printing paper money and claiming that it is based on gold or actual value "somewhere else" that the trouble starts. In the United States, only the national government can do that.

In order to be clear that things like Bills of Attainder, ex post facto laws and Nobility are prohibited everywhere, not just at the national level, these are also prohibited to the states.

Clause 2: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's [sic] inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul [sic?] of the Congress.

(The sic on "it's" is because the word "it's" is the contraction of "it is" while the word "its" is the possessive. Here the usage is possessive. I don't know if "controul" is archaic or an error.)

Initially, long long before the income tax, it was intended that the government finance itself largely by duties on imports and fees on other such international commerce.

Here, it is saying that the states have the right to charge fees for import or export inspections that it decides it needs to do and that those fees can be used to pay for the process, but any profit they make goes to the national treasury. The national Congress reserves the right to totally control this whole realm.

Clause 3: No State shall, without the consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

States don't keep their own armies and navies in times of peace or make deals with foreign powers or other states about military action unless the urgency of the situation (coupled, presumably with the poor communications of the time) demands it. Defense is really a national prerogative, one of the main ones for which the union was formed in the first place.

U.S. Constitution Article II Section 1. 2005 November 19 for December 15^th

You may have been wondering about the rest of government, the executive and judicial. The authors of the Constitution thought of the legislative as the more important branch since it most directly and accurately represents the people themselves. There is also a need for other functions in government, however, and in this the second Article, we turn to the definition of and constraints on the centralized executive.

It is hard for people to think of their government except as individualized personalities. A current government is thought of as some "President's Administration" not some Congress's term, for example although the design and intent was the latter.

The Presidency is defined, and has grown, to have many monarchical powers of command and ceremony since someone must do these things for the nation, but they have no direct legislative or judicial powers, as monarchs do. The President can only introduce legislation through colleagues in Congress, can only indirectly influence its process, and can approve or disapprove it only when Congress is done. The President appoints judges and can pick people whose judicial approach and opinions he likes, but after the appointment, he has no power over them, save higher-level appointments.

We now turn to Article II. The executive.

Article II.

Section. 1.

Clause 1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected as follows

Clause 2: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

These "electors" are known as the "Electoral College" and still function in a perfunctory role today. Ordinarily, electors are chosen based on which national candidate has received the most votes in a state, and the slate of electors are people who are nearly certain to actually vote for the candidate who won that state.

This is far from the original intent, which was that the governments of the states would appoint people who they trusted to have wisdom and good judgment and who would take on the sole task of deliberating and voting on who should be the President of the United States.

Only on very rare occasions today, an elector will change his mind between the time that a state assigns him to the College and the convening for the formal vote.

Clause 3: The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

This complex and arcane language outlines the process by which the election of a President and Vice President will be closed. It is not clear how the system could or did work or what the intent was. There are a few hints about concerns of the authors. For example, there was great concern that the Elector system would not commonly choose a clear winner and so procedures for Congressional selection of a President are spelled out. It is unclear what is gained by having the representatives vote by state delegation or any of the other irregular rules. This is clearly a departure from proportional representation.

Notice that the Vice President is whichever candidate was in second place. There was apparently no expectation of teamwork between the President and Vice President, the two who would today be considered the winner and the loser, nor was there any apparent consideration of partisan coalitions in these methods.

Inasmuch as it has been superceded by Amendment, we will not discuss the details of this Clause further here.

Clause 4: The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States

The national election is held on the first Tuesday after the first Monday in November, as will be specified later. The electors chosen meet sometime in December to formalize their directed choice. As we said above, this is all essentially perfunctory today.

U.S. Constitution Article II Section 1. 2005 November 21 for December 16^th

Article II.

Section. 1. (concluded)

Clause 5: No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Like a monarch, a President must be a born citizen of the country. This and the residency phrase are intended to eliminate possible sources of conflicting interest.

Clause 6: In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the VicePresident [sic?], and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

This basically defines that the Vice President is the President when the President is seriously (but not merely temporarily) unable to serve. This clause has been changed by Amendment, as we shall see. I thought that the Constitution specified the succession order past Vice President but it doesn't here. Perhaps this will also be in the Amendments.

Clause 7: The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

These are salary limitations for the President himself in the original Constitution! Note also the prohibition against untoward interest in any individual states.

Clause 8: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

I don't know what the distinction between "swear" and "affirm" is, perhaps it is a personal preference, but this is the same oath of office used for President today.

U.S. Constitution Article II Section 2. 2005 November 21 for December 19^th

Article II. (continued)

Section 2.

Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

These are the particular imperial powers that are vested in the President, making him quite powerful. He is in charge of all the militaries, national and state, when they are used for national purposes and he is in charge of all the executive offices. He has the power of pardon except for the political case of impeachment. Presidents sometime use the power of pardon at the very end of their terms, sometimes on the last day, making it something similar to the death of the High Priest of Israel or the change of monarchs in other regimes clearing the books on certain cases.

Clause 2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President deals with other countries, but can only close deals when backed by a supermajority in the Senate. He appoints representatives to other countries and also appoints the judges on the Supreme Court but, again, only with support from the Senate (only a majority for the appointments).

Beyond what is specified here, the Congress can make detailed appointment arrangements as they choose.

Clause 3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

When no one is home down in the Senate, the President can make appointments without their consent, but these only last until there is a session where they could have acted on permanent appointments.

U.S. Constitution Article II Sections 3 and 4. 2005 November 22 for December 20^th

Concluding the description of the President:

Article II. (continued)

Section 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

In our era, the duty to give Congress information from time to time is fulfilled through an annual "State of the Union" address, which is a major, formal speech given before a joint session of Congress, the Supreme Court, the Cabinet (with a few members absent in case of disaster), and the nation, via telecast. In the past, this duty has been discharged in different ways, some Presidents not taking it very seriously at all and only sending a clerk down with a written report, but today it is seen as a major political opportunity and played for all it's worth.

The President also performs official functions of state, entertaining foreign dignitaries and so forth. In our era, the White House is the state residence of the President, provided for this and other such official purposes.

The President also has power to deal with disputes between the houses of Congress on the matter of adjournment. I can imagine the circumstance that the authors were trying to address, but am not aware of any times when a power like this has been used recently.

Section 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Finally we deal with removal of the President from office.

Impeachment has been levied against a sitting President of the United States twice. The first was against Andrew Johnson, the Vice President under Abraham Lincoln and Lincoln's successor. Johnson was a southerner (because, at the time, the candidate with the second most votes was made Vice President) and his policies were very unpopular in the largely Yankee Congress. He was tried in the Senate but missed conviction by only one vote. If I remember correctly, nine senators voted with him. Since two thirds are required for conviction, this must mean that seventeen voted to convict, making a total of twenty-six senators representing thirteen states. It must be, then, that at this point, states in the south had not been re-incorporated or re-granted senators. (This seems likely in light of the Fifteenth Amendment, which we will see later.) It is said that those nine senators committed political suicide by siding with the President.

The second impeachment in U.S. history was only last decade when President Clinton was tried, essentially, for lying under oath about an extra-marital affair. The vote in the Senate in his case was more like 50-50, far from a conviction. The twelve congressmen from the House who brought the charges to the Senate committed their own political suicides in the process.

It was unclear in either case what the actual crime was. Treason, interestingly, is historically defined as murder of the monarch. The monarch is sometimes referred to as the country, for instance, a king of England is sometimes referred to simply as "England." In the U.S. it is a term used to describe an activity that could result in the death of the nation. In neither case was bribery an issue. It always seems to come down to "high crimes and misdemeanors" which phrase receives wide interpretation.

Nixon was nearly impeached, and it is thought that a substantial case was forthcoming, but he resigned before it could be brought, as soon as he had a Vice President in place who he believed would pardon him afterwards. Note that, under Section 2 Clause 1, the new President in that case could pardon crimes but not impeachment.

Thus, a President has never been removed from office in this way, but the political stakes are always high when an impeachment occurs.

On rare occasions, federal judges are impeached and removed from office. I don't recall any such cases, but do remember growing up seeing lots of bumper stickers that said, "Impeach Earl Warren". Earl Warren, a Californian appointed Chief Justice by President Eisenhower, led the high court to a unanimous verdict in Brown vs. Board of Education which, de facto, integrated U.S. public schools during my lifetime. This, and presumably other liberal judgments, made him unpopular in the south, where these bumper stickers were seen.

U.S. Constitution Article III 2005 November 24 for December 21^st

The U.S. Government consists of three “balanced” branches. This is the third, the judiciary.

Article III.

Section 1.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

First, the jurisdiction (scope of power) of the Supreme Court is established and it is noted that there will be subordinate courts, as established by Congress. Holding office “during good behaviour” means “for life” except in case of “bad behavior.“ Compensation is irreducible in order that the payers (Congress) will not try to influence sitting judges by “adjusting” their pay.

One can only imagine the past abuses in judiciaries that led the authors here to think of and include such restrictions.

Section 2.

Clause 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; -- to all Cases affecting Ambassadors, other public Ministers and Consuls; -- to all Cases of admiralty and maritime Jurisdiction; -- to Controversies to which the United States shall be a Party; -- to Controversies between two or more States; -- between a State and Citizens of another State; -- between Citizens of different States, -- between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

This spells out the various disputes that are under the jurisdiction of the court system and then, ultimately, the Supreme Court. The President makes treaties and the Senate must ratify them, but if there are disputes arising as a result, it is up to the Supreme Court to adjudicate them.

Issues with representatives of other countries go straight to the Supreme Court, as do other disputes, between states or citizens and states where they don’t reside. Of course, property disputes can rise to the federal courts. This just says that disputes internal to states can also rise to the federal level (on appeal, as we see next).

Clause 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Original jurisdiction means that the indicated court is the first place that a case would be heard. Appellate jurisdiction means that the case will be heard first by a lower court then may be appealed to higher courts, and ultimately the Supreme Court.

In legal proceedings, a distinction is always made between the “facts” and the “law”. The facts are the matters or events that constitute the complaint or dispute, what it is that actually happened. The law is what the legal codes say about such cases. Both are subject to dispute, discussion, and interpretation and the Supreme Court has the final word in all situations.

Clause 3: The 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.

Trial by jury was a particular sore point when our country was founded. In addition to getting rid of notions of legal class and nobility (slavery and natives notwithstanding), there was insistence that trials be conducted by juries of one’s peers, that is, not by a person or people of higher social rank. This equity is though to enforce a great deal more fairness in the process than had been traditionally experienced under peerage, as was practiced in England and other countries. If I am sitting on a jury, I fully realize that the roles between myself and the accused could easily be reversed since the same laws and judicial standards apply to all. A nobleman trying a commoner could not have that feeling since they lived under different rules.

In jury trials, it is up to the jury, on deliberation, to “decide the facts” of a case. The lawyers present what they want the jury to believe that the facts are, but the jury, consisting of “normal” people without special legal training, are to decide among themselves what the actual facts are. Having established the facts, the court (that is, the judge) informs and instructs the jury on the law in such cases. The jury then decides the consequences based on the facts and the law.

As cases go through appeal, however, they are heard and decided by judges, up to the Supreme Court, but even there, cases are decided by majority vote. Juries ordinarily consist of six or twelve citizens and decisions normally must be unanimous, except in civil cases where sometimes it is less (like ten of twelve, never just a simple majority). Higher courts are constituted of multiple judges, in odd numbers, so that ties are not possible, at least when all are present and voting. The Supreme Court has nine justices today. This is addressed by Amendment, as we will see later.

Section 3.

Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

In a monarchy, treason can mean many things, things as simple as the monarch simply saying “treason!” The definition of treason is constrained here, probably to prevent abuse. The need for the testimony of at least two witnesses in such serious cases is straight out of the Mosaic Law, and was also cited by Jesus himself.

Clause 2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The punishment for treason is usually death, but this is not specified in the Constitution, it is left to the Congress to declare. I don’t know precisely what the rest of the language means, but based on what we saw earlier under “laws of attainder” I suspect this has to do with inheritance and property rights of the accused versus those of his family. I think the intent here is that only the accused is to be punished and only then during his own lifetime. It is still a blot on one’s reputation to be related to a criminal today, but at least this perception has no formal legal standing.

U.S. Constitution Article IV Sections 1 and 2. 2005 November 28 for December 22^nd

This article deals with the relationship between the states.

Article. IV.

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

This is the section that says that if you are married under the laws of one state you are married anywhere in the United States. If you are a felon in one state, you are a felon everywhere. When such marriages or other provisions of state laws are controversial among the states, such recognition, typically, is not automatic but can involve years of court fights. We will see later that a state can have its laws overturned (or “vacated”) as being unconstitutional by federal courts. In other cases, states are compelled by federal authority to honor the statutes of others.

Section. 2.

Clause 1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

By being a citizen of a state, one is a full citizen of the country. This seems obvious to us now, but is not necessarily true under a confederation of governments, such as is the United States.

Clause 2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

For big crimes, this deals with all extraditions from one state to another within the nation. One can ordinarily escape misdemeanors, such as parking violations, by leaving the state offended for another and remaining until the “statute of limitations” has expired in the former, but one cannot escape grand theft or murder charges so easily.

Clause 3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

This refers particularly to fugitive slaves who, though they might have escaped from a slave state to a free state were still slaves, property, and were legally required to return to their owners. The question of why this didn’t just make all states slave states was an important part of 19^th century history in this country. This was altered by amendment in the aftermath of the Civil War.

U.S. Constitution Article IV Sections 3 and 4. 2005 November 29 for December 27^th

Article IV. (continued)

Section 3.

Clause 1: New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

This is the all-important means by which states can be added to the nation and the prohibitions against clever trickery through which a state might increase its power by merging or dividing. Once a state is formed, there is no changing its arrangement without concurrence from every government involved, and the national government, and there is no provision for a state to leave the union at all.

Many states have joined the United States and new territory has been added to some (such as in the Gadsden purchase), but none have split or merged.

There is said to be an exception to this in that part of the deal made when Texas joined the union was that it reserved the right to divide itself into five states. (It is said that they will never do this on the grounds, “Which one would get the Alamo?”) Rumors that California has a deal like this are false. Rumors that Texas has the right to remove itself from the nation are also false. It looks to me like any splitting of Texas would require a Constitutional amendment, annexation deal notwithstanding, or at least a Constitutional ruling.

Clause 2: The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

There are always some lands that are part of the nation but which are not part of states. The national legislature controls them.

Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on the Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

“Republican” means democratically elected, representative government. The details are not specified but the form and the authority are. This is why the national legislature must approve substantial changes to any state constitution. This is also the basis for national intervention in internal problems, or in case of external attack.

Discussion question: What does this Section say or imply about the situation in New Orleans as Hurricane Katrina approached?

U.S. Constitution Articles V and VI 2005 November 30 for December 28^th

Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The Constitution is intended to be a “living document”, adaptable to changes in times, changes in the country, and new ideas. Also, there was considerable support for additional measures, what later came to be called the “Bill of Rights” which form the first several Amendments, without which several states would not have ratified in the first place. A means of updating or “amending” is provided here. History has proven that this fairly stringent means is adequate but not too easy.

The cited portions of the first Article have to do with the importation of slaves and taxation based on census, based in part on slave count.

Article. VI.

Clause 1: All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This is the first mention in this document of the predecessor government, the “Confederation.” Clearly, there was concern that the obligations made by that government on behalf of, essentially, the same nation, but now under new management, should still be honored.

Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all the Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

This is where the Constitution is declared as the highest law. Any law or treaty made nationally, or any provision of the constitution or law of a member state is subject to the overriding authority of this Constitution. There were those who felt, in part from their experience with a weak Confederation, that the national government should be strong. This clause leans in that direction and, indeed, the evolution of the country has moved in that direction. States still have individual, localized powers, but the national government is quite overriding in many instances.

Clause 3: The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

As with the President, it is necessary for all officials of the national and state governments to swear to uphold this Constitution. The civil service oath, taken by employees of the government (such as those at NASA, excepting JPL) also includes a phrase to this effect.

Religion representing broad diversity of strong thought on unprovable, unanswerable, and transcendental matters, a requirement of specific beliefs (or disbeliefs) is explicitly excluded for any officeholder. This is part of the foundation of the doctrine of “separation of church and state” which is otherwise, by that name, not mentioned herein.

The proper interpretation of this language is that any person of any belief or lack thereof is not disqualified for any office solely on that basis. A priest in any religion can serve in Congress alongside an agnostic or atheist. It is a modern over-interpretation to claim that religion cannot inform or motivate the actions of officials, although such officials are answerable ultimately to their voters with respect to their official duties.

U.S. Constitution Article VII 2005 December 1^st for 29^th

Article. VII.

We end with the legally binding language that establishes the document as law followed by the signatures of the convention members who crafted it.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

Note the optimism that the entire calendar might be re-started with the independence of the new country. I have an archaic map of the Republic of Texas in which the longitude is marked off “west of Washington” (in addition to “east of Greenwich”), a similar gesture to ascendancy for the New World.

Although the names are tedious, I think that, considering the reverence we give to this document, that they should also be reproduced here. I have attempted to preserve the spelling and capitalization usage from the original which is, again, quite different from today’s in some cases.

You will recognize some of these.

GO WASHINGTON – Presidt. And deputy from Virginia

Delaware: Geo: Read, Gunning Bedford jun, John Dickinson, Richard Bassett Jaco: Broom

Maryland: James MCHenry, Dan of ST ThoS. Jenifer, DanL Carroll.

Virginia: John Blair--, James Madison Jr.

North Carolina: WM Blount, RichD. Dobbs Spaight., Hu Williamson

South Carolina: J. Rutledge, Charles 1ACotesworth Pinckney, Charles Pinckney, Pierce Butler.

Georgia: William Few, Abr Baldwin

New Hampshire: John Langdon, Nicholas Gilman

Massachusetts: Nathaniel Gorham, Rufus King

Connecticut: WM. SamL. Johnson, Roger Sherman

New York: Alexander Hamilton

New Jersey: Wil: Livingston, David Brearley., WM. Paterson., Jona: Dayton

Pennsylvania: B Franklin, Thomas Mifflin, RobT Morris, Geo. Clymer, ThoS. FitzSimons, Jared Ingersoll, James Wilson., Gouv Morris

Attest William Jackson Secretary

The ninth state to ratify the Constitution was New Hampshire on June 21, 1788 at which point the new nation was formed. The other five states followed, ending with Vermont on January 10, 1791. (At this point there were fourteen states.)

U.S. Constitution Amendments I and II 2005 December 8^th for 2006 January 3^rd

Amendments to the Constitution

CONSTITUTION OF THE UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE LEGISLATURES OF THE SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL CONSTITUTION.

These first ten amendments, called the “Bill of Rights”, were proposed in September 1789, ratified by December 1791, and were a condition of Constitutional ratification by some of the states. Two other amendments did not pass, but what would have been the 12^th eventually became the 27^th, in our own times.

The fifth article is, of course, the one that lays out the procedure for Constitutional Amendment.

Article [I]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Much of what we consider our fundamental rights as civilians are contained in this single sentence including:

- non-establishment of religion,

- free exercise of religion,

- freedom of speech,

- freedom of the press,

- right of assembly,

- petition of government.

The first two are the other half of the so-called “separation of church and state” which is otherwise not mentioned in this document. The abuse being prevented here is of giving governmental powers to any religion. It was recognized that there are many faiths and the United States could not be formed to make one of them official. On the other hand, people are allowed to exercise religion without undue government interference. The latter concept gets a lot less press in our times than the former.

The Covenant (Protestant) denomination to which we belong was a response to the established church of Sweden, the Lutheran. All Swedes were required to be Lutherans and, as a legal part of their citizenship, to practice certain religious observances including a certain level of financial support. This seems ridiculous to us today, particularly in an era when even the simple offering of prayers at public events is hotly debated.

Freedom of communications: Citizens are permitted to say publicly what they want, or to print it in the paper (and, by extension, say it on radio or television). This does not mean that a person can say or print just anything. They are still responsible for their words and actions, but the government cannot get arbitrarily involved in regulation of these matters without good cause. Everyone has the right to criticize the President if they want to, and if they think they can still live with their neighbors afterwards.

We have learned by observing several scrapes at the Baylor Lariat, the student paper at Baylor University, that “freedom of the press” means freedom of the publisher (that is, the university) to say whatever they are willing to take responsibility for and stand behind. It does not mean freedom of any reporter to put anything they want into the paper that they happen to work on.

Finally there is the right of peaceable assembly, something else that we take for granted here. Civil officials don’t like mobs and they don’t like large numbers of people getting together to object to what they do, but it is permitted in this country so long as it is done peacefully, and is a vital part of our political process.

Article [II]

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This amendment frames the debate over so-called gun control. Crimes committed with guns are much more destructive and dangerous and there are many who think therefore that guns should not be widely available to the public. Others, for a variety of reasons, self-defense, sport, and so forth, would like for guns to be reasonably available and safely handled.

Guns, like so many other technologies, have great power for good or evil. They cannot be un-invented. The society we now know could not have developed without them.

Personally, I don’t like to be closely associated with devices of deadly force. In terms of my own safety, I am too clumsy. In terms of my own defense, I eschew life and death decisions and power. To some the choice of their own life over that of an assailant is obvious. To me it is not. Our culture could not exist without the responsible use of such weapons, however, and I do not hold that they should be generally denied.

By the standards of the arguments here, the amendment itself is archaic. The claim is that defense of the country is a grass roots power and that for it to be effective, people generally need to have and maintain their own weapons. Although this amendment prohibits our national government from taking away our guns, I don’t think that this prohibition protects us from despotism like it did in the 1790s. Our government today controls tens of thousands of atomic weapons and many other instances of many other types of technologies of mass destruction. A citizen with or without a gun has little power against such as that. These weapons are intended for national defense, not use within the nation on citizens, and as far as I know, no leader has ever tried such massive coercion on the citizens. What prevents them?

U.S. Constitution Amendments III, IV, & V 2005 December 9^th for 2006 January 4^th

Article [III]

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time or war, but in a manner to be prescribed by law.

Back in the old monarchies, the monarch owned everything in the country and could use it in any way he pleased. If he had soldiers that he needed to put up for the night, or for a fortnight, he might just use your house if it was convenient. This was clearly irritating and disruptive. One can see how such expediencies might be necessities in time of war, but even then such quartering has to be done by law, not by the mere discretion of commanders.

Article [IV]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Back in the old monarchies, the monarchs owned everything in the country, including the people and their very bodies, their personal effects, and their privacy. By extension, agents of the government were accustomed to inflicting any abuse they wanted in the name of the king, in order to get what they were ordered to get. A government for and by the people doesn’t do this and doesn’t allow its agents to do this. Officers have to have a warrant to take action, and the warrant has to be supported by “probable cause” that is, a high likelihood of criminal activity. Anything less is “fishing” and that is prohibited. In fact, even a warrant in hand is not a license to fish; it has to be specific.

At least that’s the way we want it.

Article [V]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Officials cannot bring charges without due process, except in the military. Even in the military, the rules are only different during wars. This is why our own times today are different. A war has been declared and that makes this a “time of war” with more authoritarian rules everywhere. Those who want to have big government doing big things have an easier time during declared war.

Double jeopardy is prohibited. No one can be forced to testify against himself, the officials must find other witnesses. Imminent domain with reasonable compensation must be used in condemning private land for freeways.

We take all of this for granted, having always lived in this country under these “common sense” protections, but in a country where the monarch owns everything anyway, putting a road wherever he likes for whatever purpose he likes regardless of the consequences is a way of life. The government is an immensely powerful entity and the people who put our country together were determined to keep that power answerable, somehow, to the people. Long may they reign!

U.S. Constitution Amendments VI, VII, & VIII 2005 December 10^th for 2006 January 5^th

Article [VI]

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Several forms of abuse are seen being countered here. One way to deal with a criminal, as we saw when we discussed ‘habeas corpus’ is to just lock them up indefinitely without making any progress towards a trial, or even charges. We saw this done to the Apostle Paul, for example. This is prohibited here.

Once when observing traffic court, we noted that the judge would not continue cases without asking the defendant for a waiver of rights. When we asked what this meant, he explained that people have a Constitutional right to a speedy trial (right here) and that, if they want to go get some insurance paper or other evidence thus requiring the case to be continued to some later date, they had to waive their right to a speedy trial to do so.

Another way for the state to unfairly use its power against suspects is to haul them off to some other location, far from where they live and where, perhaps, no one knows or cares about them.

Yet another way to keep the suspected criminal down is to bring charges and witnesses without him knowing what and who they are. Also there could be, for example, witnesses whose testimony would favor the accused but who for some reason do not wish to give it. Law based on this amendment provides for subpoena power so that all parties to a case can have access to the testimony that they need.

Again, this all seems obvious, common-sensical, and fair to us, but these provisions would not be in our own Constitution were such abuses previously unheard of.

The final clause deals with the need for legal representation. By the time of the birth of the United States of America, the legal system had millennia of precedent and tricks. It really requires a professional to negotiate it except in the most trivial cases. All citizens have the right to representation in the life-and-death system by professionals who know what they are doing. This is the basis of the clause in the Miranda rights, “… if you cannot afford an attorney one will be provided for you.”

An aside, the system is complex and the stakes are high. It is considered unwise for a lawyer to handle his own case, should one arise. Or, in the words of Chief Justice Oliver Wendell Holmes, “A lawyer who represents himself has a fool for a client.”

The tricks of the legal trade have been practiced by nations before this Constitution, and by nations after, and by this nation under this Constitution. There are always loopholes and lawyers to find them. For instance, none of these rules seem to apply to non-citizen “enemy combatants” in time of “war”.

Article [VII]

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

There was a time when twenty dollars was the boundary between a misdemeanor and a felony. I think it is $200 now, at least in California. The abuse being prevented here is that the judicial system itself will grind up the poor defendant in its bureaucratic or oppressive routine. Recall that we discussed earlier the distinction between the “facts” of a case and the “law.” This amendment says that juries are the final arbiters of the facts. Appeals are on points of the law, or the actual handling of cases.

Article [VIII]

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Yet another way to use the enormous powers of government to crush someone we don’t like is to accuse them of a small crime then fine them a large amount. This is prohibited here, although the meaning of “excessive” is left to interpretation.

The “cruel and unusual punishment” phrase has been used very widely in our country. The original intent was to prohibit such practices as “drawing and quartering” or even the guillotine, a device which itself was considered comparatively merciful. Both are considered cruel and/or unusual to Americans, the guillotine on grounds of dismemberment, I suppose. At one point, the very death penalty itself was outlawed as being “cruel and unusual” but in the 1970s this was reversed, though most forms of execution are still considered “cruel and unusual” today, excepting lethal injection. Hangings, burnings, and even firing squad are no longer used in the U. S.

U.S. Constitution Amendments IX - XI 2005 December 12^th for 2006 January 6^th

Article [IX]

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This statement means that just because a right isn’t listed in the Constitution doesn’t mean in itself that it does not exist.

When I think of “rights” in this way I am reminded of Freeman Dysan who belongs to an organization devoted to human responsibilities and obligations. He always says, with a chuckle, that this is a much smaller organization than the ones devoted to human rights.

Article [X]

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The prior amendment dealt with rights, this one with powers. This is where it says that the national government does not have any powers that are not listed in the Constitution. Those powers belong to the states or, in the name of freedoms from government, to the people themselves if the states are prevented from taking them.

Discussion question: Do today’s state and national governments fulfill the spirit of this restriction?

This is the end of the Bill of Rights.

Article [XI]

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

This says that a state cannot be sued from outside, at least not in federal court. A citizen can sue the national government if the government agrees to be sued. States, presumably, could have similar rules for their own citizens. This amendment, however, prevents the national courts from getting involved in suits against states from outside.

U.S. Constitution Amendment XII 2005 December 13^th for 2006 January 9^th

Article [XII]

The Electors shall meet in t heir respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. – The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

This is an overhaul of the way that the President and Vice-President are elected and is the way that it is conducted today, by and large. As we have said before, the process of selecting Electors and having them vote and report as prescribed is largely perfunctory and tied to party affiliation state-by-state in today’s politics.

It was the belief at the time that this electoral process would not result in a majority very often because the votes from the individual states would contain many names. It was believed that, therefore, the President would be chosen often by the House, using the Byzantine method detailed here, and that the Vice-President would be similarly chosen by the Senate. This has, however, never actually happened. The political parties have taken over instead.

There was speculation in 1992 that Ross Perot’s strong third party candidacy might “throw the election of the President into the House” and that a deadlock there might result in the Vice Presidential candidate, Dan Quayle, becoming President by being picked in the less divided Senate through the procedures detailed here. This, too, did not actually happen.

There is a slight modification to the procedure of indecisive succession in a later amendment.

This is the end of the initial composition and amendments to the Constitution. This one was ratified in 1804.

U.S. Constitution Amendments XIII – XV 2005 December 16^th for 2006 January 10^th

These are the amendments consequent to the Civil War.

Article XIII

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the Unites States, or any place subject to their jurisdiction.

There are no longer slave and free states, nor is it permitted to hold slaves in Puerto Rico, the Virgin Islands, or Guantanamo Bay, Cuba.

This is, however, the Constitutional basis for the use of convicts (of relatively minor crimes) on litter cleanup gangs by CalTrans on the highways of California, and for the making of license plates in prisons, all without pay.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Just so there is no confusion about who is or is not permitted to make relevant legislation.

Article XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This makes all residents equal. The current move to make the children of illegal aliens non-citizens even though they are born in the United States will require, following a series of law suites, an amendment to this amendment.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

This dispenses with that ridiculous 3/5 slave census provision in the original Constitution. Note that Indians are still excluded. Indians were not direct subjects of “debate” in the Civil War, but were largely eradicated from the plains shortly thereafter by the residual army (with a few infamous “setbacks”).

This is the first time in the Constitution that we see the usage “male,” an indication that the social battle that will occur next is specifically not addressed here.

It is also the first time that we see the age 21 specified as the age of majority.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Those who fought with the south are prohibited from being officials in the re-established union, unless Congress acts specifically otherwise with a super-majority.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Wars aren’t free. This says that the union, the winners, can run up the debt that it needs to in order to fight the battle and reward the veterans. Period. The union will not pay any expenses of the rebels, nor any economic loss of any kind due to the abolishment of slavery. In fact, no one will pay any such loss. Any such claims are now void.

This reminds me of a typical software license agreement. “We are not responsible for anything.”

Constitutionally, the Civil War is called an “insurrection.”

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

As above.

Article XV.

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

A separate amendment deals with enfranchisement. Former slaves may now vote.

Well into the twentieth century attempts were made to get around this provision, through the use of “poll taxes” (fees paid for voting that the poor could not afford) or “literacy tests” and the like. Ultimately, these were all ruled unconstitutional under this amendment.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

When they get around to it.

Ratification of these amendments was completed in 1865, 1868, and 1870 respectively.

U.S. Constitution Amendments XVI – XVII 2005 December 17^th for 2006 January 11^th

Article XVI.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

I do not know the history of income taxation prior to this amendment, so we will engage in an exercise of reading between the lines. Apparently the Congress set up a national income tax early in the 20^th century and it was, naturally, challenged in court. This income tax was then ruled unconstitutional, apparently on the proportional assessment clauses of the Constitution that we have seen previously. Taxation would have to be proportional to population and as such, per capita, not per income. In today’s government and population, this would amount to about $5000 per person per year (or something like $20,000 per adult male if census were still done in that way).

Once the Supreme Court had ruled income tax unconstitutional, it was necessary to amend the Constitution to establish an income tax and this amendment is the result.

This has fundamentally changed the way that people consider their fortunes. Now, by Internal Revenue Service regulation, it is illegal not to know what your income is on an annualized basis. Indeed, it is illegal not to know in great detail every aspect of your personal finance and it is illegal not to pay taxes on major income segments on an ongoing basis (in the form, normally, of quarterly estimates or income withholding per paycheck).

Inasmuch as the complexity of the income tax code gone far beyond merely Byzantine, a substantial cottage industry of accountants (millions of people) has emerged to provide an interface between people or businesses and the government for this purpose. Inasmuch as the government has enormous powers compared to individuals, a cottage industry of lawyers has arisen in an attempt to protect citizens in the various phases of rendering their obligations to their national government.

The amount of national resources devoted to these essentially make-work activities is mind-boggling and, in my view, largely wasted.

Utah objected to this amendment but it was ratified anyway, in 1913.

Article [XVII]

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

This changes the way in which national senators are elected to what is practiced today. Rather than being elected by state legislatures as representatives of states, senators are now elected directly by the same voters who elect any other representatives. Also, the method of dealing with vacancies is tweaked, although the power still resides with the state executive.

I do not know what the debate or the pros and cons on this issue were but do note that this is a shift away from more “representative” government towards more directly elected government. Apparently the idea that state governments themselves would provide a higher level of sobriety to the national upper house is now considered obsolete.

This amendment was also ratified in 1913 and was also rejected by some states. Of course, a ratified amendment is law in all states whether they individually ratified it or not, per the provisions of Article V. This is a manifestation of “majority rule.”

U.S. Constitution Amendments XVIII and XXI 2005 December 20^th for 2006 January 12^th

Today we are considering the two amendments that deal with prohibition of alcoholic beverages in the United States, the 18^th and 21^st. We will consider the two that intervene, the 19^th and 20^th, tomorrow.

Article [XVIII]

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

There must have been a major party a year (less a day) after ratification (that is, January 1920 after ratification in January 1919) just before this went into effect, sort of a reverse 21^st birthday party.

The effect of this amendment was to set up a large underground business in the production, transport, and sale of “intoxicating liquors”. The watchword ever since has been “you can’t legislate morality,” but of course this is not true. Murder, which is immoral, is still illegal and no doubt always will be.

A modern argument is made that the “War on Drugs” is a similar phenomena. Those making this argument suggest that there should be no illegal drugs, but that dangerous ones should be regulated. In my admittedly uneducated view of this, this is already true in most cases, such as “speed” though not yet of marijuana. Speed is available as a prescription medicine (under a more proper name), but is illegal over the counter (or on the street). The debate over “medical marijuana” is ongoing.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

We have not seen this before. They are explicit that both national and state legislatures can make laws bearing on this issue. Perhaps they are being suggestive.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

We have not seen this before either. It is made explicit that ratification will be by state legislatures and that there is a time limit for this to occur. These provisions suggest background negotiation.

Article [XXI]

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

This is unprecedented, one amendment negating another. Note that words are never removed from the Constitution, but that they are often superceded.

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

This makes you take a double-take doesn’t it? Handling or usage of liquor that is illegal or in illegal ways is still illegal, this doesn’t undo any state or territory laws on this matter, but it is no longer a national prohibition.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Ratification was proclaimed in December of 1933 making the duration of Prohibition nearly 14 years.

I had a teacher in high school who, having lived through this period, believed that the state legislatures were much more conservative than the people who would be elected to participate in ratification conventions and that, therefore, this provision, specifically requiring the more direct method of ratification was necessary for this amendment’s passage. Perhaps he was right on this point, he was one of those saying, “You can’t legislate morality,” however.

No doubt we see much background negotiation here, not to mention a long series of law suites.

Discussion question: Is this the sort of matter that should be in the scope of a fundamental document such as the U.S. Constitution? We don’t, for example, see other crimes such as murder or theft, mentioned explicitly herein. Value determination, appropriate punishments and other such details are usually left to Congress.

U.S. Constitution Amendments XIX and XX 2005 December 22^nd for 2006 January 13^th

Article [XIX]

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Ratified in August 1920.

The shortest amendment since the Bill of Rights, these sentences don’t even have numbered sections. This is, of course, “votes for women” and represents another step in the evolution of democracy. There is no time limit for ratification.

This became law at about the time that all of my grandparents were reaching voting age. There is a story in the family from the generation before theirs in which the husband would not allow his wife to vote, being personally against the principles codified in this amendment and thinking, as was common at the time, that women were incapable of such political thought or activity. He prohibited her, that is, until he wanted her to join him in voting against Franklin Roosevelt for President, which could have been in 1932, 1936, 1940, or 1944.

After he took his wife to the polls for that election, the story goes; she continued voting, as she chose, in elections following.

Article [XX]

Section 1. The terms of the President and Vice President shall end at noon on the 20^th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5. Sections 1 and 2 shall take effect on the 15^th day of October following the ratification of this article.

Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years form the date of its submission.

Several matters concerning terms of office and succession to the Presidency are cleared up by this amendment, which does have a time limit for ratification. The beginning time (Section 5) seems to be set to avoid any interference with elections or succession under the old system. Succession is not specified here, so the ordering: President, Vice President, Speaker of the House, President Pro Tempore of the Senate, Secretary of State, and so on through the Cabinet, must be specified by law elsewhere, outside of the Constitution itself.

Ratification was completed January 23,1933, so Franklin Roosevelt would have taken office the first time that March under the old system. Each of his re-inaugurations would have been on January 20^th, but he died in office in 1945 during his fourth term and so his successor, Harry S Truman, would have assumed the office at that time, then would have been re-inaugurated after re-election on January 20, 1949. The first President to actually take office on January 20^th, therefore, must have been Dwight Eisenhower in 1953, 21 years later.

This would have had its first effect on Congress after Franklin Roosevelt’s first mid-term election in 1934. The 74^th Congress newly assembled in 1935 would have been the first to start on January 3^rd.

U.S. Constitution Amendments XXII – XXIII 2005 December 23^rd for 2006 January 16^th

Amendment XXII

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress.

There is a simpler way to say this: No person can be President for more than ten years, not counting the current guy.

The manuscript I’m working from doesn’t indicate the ratification date, but this amendment was proposed and ratified sometime during the unprecedented four terms of Franklin D. Roosevelt (possibly during the third term when everyone was incensed that he should have the gaul to run again). There was an implicit tradition that Presidents would only serve two terms maximum but it wasn’t actual law and so somebody was sure to test the limit. Once that was done, this amendment was added. Two terms of anything, good or bad, is enough.

Having term limits on the President means that once someone is elected for the second time, they can announce without losing anything political, that this is their last campaign, or whatever. It had been considered a political mistake when Theodore Roosevelt announced at the beginning of his second elected term that it would be his last. By eliminating the uncertainty that there might be a third campaign, he lost considerable political leverage. Later, he ran for President again, having had to form a third part to do so, and lost, never having recovered from that error, among others.

In a more recent incident, when President Clinton was in serious trouble around 1998, there was speculation that he might resign, but that he might postpone his resignation until such a time that it would allow then Vice President, Al Gore, to run twice on his own, under this rule. Had Clinton resigned sometime in 1998, Gore would doubtless still be President today.

Amendment XXIII

Section 1. The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Territories such as Puerto Rico, Guam, American Samoa and the Virgin Islands have House representatives in proportion to their populations as do the other states, one each, as it happens, but they do not have senators so they receive fewer votes in the Electoral College than if they were states. The District of Columbia also has one House representative. This amendment makes D.C. a special case, with three electoral votes (as if it were a small state) rather than one (as if it were a territory). Perhaps D.C. needs to be a special case because, unlike the other territories, it can never become a state itself (Article 1, Section 8, Clause 17) aside from further amendment to the Constitution. American Samoa, on the other hand, could conceivably become a state if it wants to acquire senators and additional electoral votes.

As there are 435 representatives and 100 senators, and since D.C. gets two extra, there are 537 electoral votes in a presidential election, with 269 needed to win. Since this is the last time we will see the Electoral College in this review, we will take a brief look at the results of the 2000 presidential election and make a few comments.

From http://clerk.house.gov/members/electionInfo/2000/Table.htm .

Candidate Electoral Popular Percentage

Bush 271 50,465,169 48.0

Gore 266 50,996,062 48.5

Other 0 3,667,066 3.5

Total 537 105,128,297 100.0

Note that no candidate had a simple majority. Many elections are conducted under rules that require a runoff between the set of candidates with the highest number of votes whose totals add up to more than fifty percent. Note that the winner in the Electoral College did not have even a plurality in the popular vote (that is, the most votes cast of any candidate, regardless of whether it is a majority or not).

The Electoral College provides several distortions to accurate voting: 1. A small state with one House representative will get three votes. A large state with, say, twenty House representatives will get twenty-two votes. A collection of small states therefore approaches three times the influence of the same population in one large state. 2. More important in this case, the “winner take all” system in each state makes it possible for the winner not to have received the majority of votes. If the states voting for the loser vote for the loser more heavily (i.e., D.C. went 90% for Gore) and the states going to the winner are closer, the winner of the election will not “win” the popular vote. This occurs frequently.

If the Electoral votes went by percentage, it would have looked like this, each electoral vote representing about a half million people:

Bush 258

Gore 260

Other 19

This would have put the election into a very evenly divided Congress (50-50 in the Senate and 212-221-2 (Republican majority) in the House) under the current rules, or into a runoff between the top two in a more modern system requiring an actual majority.

So, the United States President is not elected by popular vote, but by an arcane, anachronistic and paternalistic system of mis-representation that has, in any case, been hijacked into perfunctory partisan parroting by the powerful. Attempts to change this system have always failed. The winning party is in control and rarely wants to change anything. Candidates beyond the top two are unfairly de-emphasized. (I took a double take then triple checked that “Other 19” result.) The states and districts with unfair advantages want to keep it that way.

I felt there was some hope that the 2004 presidential election would have reversed that of 2000, that is, Bush would win the popular vote (as he did) but lose in the Electoral College, which was certainly possible. Having both major parties stung by this ridiculous atrocity in such a short period of time might give sufficient multi-partisan political support to dismantle the cottage industry of the current election process. Since this did not happen, we are unlikely to have any relief from this for several more decades, if ever. It is discussed every time a non-democratic result occurs, but, like the weather, no one ever does anything about it. It is always the losers who are whining, after all.

Inasmuch as the concepts of one-person-one-vote and majority-rule are axiomatic to our system of government (the Electoral College notwithstanding), a discussion of these concepts is out of scope here. I will point out, however, that nothing in the Bible supports such concepts. God either makes commands through a single person (Abraham, Moses, Jesus, Paul, …) or through a ceremonial random process (Urim and Thummim). In cases where people decided things in peer groups, it was by agreement, not voting. The disciples, for instance, never voted seven to five to do anything, they made decisions through discussion and what we would today call “consensus.” Our ideas of democracy come from the Greeks, who had very different religion, or lack thereof.

I do not, therefore, understand the philosophical or theological connection between Judeo – Christian values and democracy, if there even is one. I understand a secondary connection between freedom, liberty, democracy, and the unfettered ability to follow God (or not) as one feels led, and agree that our system is demonstrably superior to any that has come before it in this regard. There is not, however, any direct support for democracy in the Bible. This disconnect is one of the roots of our ongoing investigation of the Bible and the U.S. Constitution.

U.S. Constitution Amendment XXIV - XXV 2005 December 23^rd for 2006 January 17^th

Amendment XXIV

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

This is the last amendment (so far) dealing directly with a Reconstruction issue. One method of denying suffrage to poor people (former slaves and others thought “unworthy”) was to charge a fee at the election known as a “poll tax”. Apparently it took a Constitutional Amendment to put a stop to this practice.

Amendment XXV

Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

Dwight D. Eisenhower was not a well man throughout the eight years of his presidency, nor were several others before him such as Woodrow Wilson, who was President at the outset of World War I or Franklin Roosevelt just before he died in office near the end of World War II. These cases provoked crises in which the sitting President was still living but was unable to really be much involved with the duties of his job.

Within the White House, various means were used to work around these problems, family members, assistants, or administration insiders would do what they could to protect the President from having to do much or any of his work. Of course, this situation is problematic, of questionable legality, and unacceptable.

This twentieth century amendment shows a decidedly modern approach to writing laws, using complicated language to try to cover numerous possible cases so as to leave as little to interpretation or cheating as possible. The language also leaves the intent less open to clear understanding.

Richard Nixon was Eisenhower’s Vice President and it is argued that the country would have benefited from these provisions during the Eisenhower administration. Later Nixon, as President, appointed several Vice Presidents before finally arriving at the stable and un-implicated Gerald Ford who, approved by Congress as described here, was in place when Nixon resigned, thereby becoming the first “unelected President.”

Presidents since Eisenhower, assassination attempts notwithstanding, have been by and large in command of themselves and involved in their jobs, so this amendment hasn’t been used much in recent times, some of it never.

U.S. Constitution Amendments XXVI – XXVII 2005 December 23^rd for 2006 January 18^th

Amendment XXVI

Section 1. The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

In the Vietnam War thousands of young men were drafted as they reached age 18 and shipped off to southeast Asia to die for their country in a cause of questionable value. Many of them died before reaching voting age in their respective states and it seemed patently unfair to use the coercive power of the state to demand that people die for their country before they were even allowed their basic right to have a say in its government.

This amendment equalizes the age of suffrage with the age of mandatory sacrifice. It remains to be seen what will happen when the military draft collides with equality for women.

Amendment XXVII

No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.

Congress can raise (or, in principle, lower) its own pay but not effective until after the next election which, (in principle) gives the people the opportunity to throw the greedy skunks out.

As we’ve pointed out before, this might have been the twelfth amendment, thus, the problem addressed has been around and debated for over two hundred years.

There was an Equal Rights Amendment (ERA) in process for many years that would have been the 27^th (making this the 28^th). It never achieved ratification by 38 states at the same time however. Some states ratified the amendment but then voted to revoke their ratification so that a sufficient number of states to complete ratification were never in place at one time.

This provoked a Constitutional crises in which the question was whether or not a state could un-ratify an amendment once ratified. Meanwhile, the seven-year ratification deadline passed and the whole thing failed. There was also confusion in the debate whether the term “sex” meant simply the distinction between males and females or whether it also implied “sexual orientation,” a somewhat broader, and less popular, scope.

Perhaps the first woman President will lead an amendment like ERA through. Perhaps it is thought that such a thing is no longer needed.

Concluding Thoughts on the U.S. Constitution and Amendments 2005 December 23^rd for 2006 January 19^th

Here is an outline of the U.S. Constitution:

Preamble: Who and what we are.

Article I: The Congress in two houses representing the people and the states.

Article II: The Executive

Article III: The Judiciary

Article IV: Relations between the states

Article V: Amendments

Article VI: Carryover and precedence

Article VII: Signatures

Amendment I. Freedom of religion, press, and assembly

Amendment II. Right to bear arms

Amendment III. Quartering of soldiers

Amendment IV. Protection against search and seizure

Amendment V. Grand Jury indictment and jury trial

Amendment VI. Speedy trial, notification of charges, availability of witnesses

Amendment VII. Facts determined by jury

Amendment VIII. Excessive bail, cruel and unusual punishment

Amendment IX. Rights listed are not exclusive or exhaustive

Amendment X. States and personal powers.

Amendment XI. Suing of other states prohibited

Amendment XII. Rework of Presidential election process

Amendment XIII. Slavery prohibited

Amendment XIV. Rights of former slaves, rebels and debts

Amendment XV. Suffrage for former slaves

Amendment XVI. Income tax

Amendment XVII. Popular election of senators

Amendment XVIII. Prohibition of intoxicating liquors

Amendment XIX. Suffrage for women

Amendment XX. Terms of executive and Congress adjusted, Presidential contingencies

Amendment XXI. Repeal of prohibition of intoxicating liquors

Amendment XXII. Term limits for President

Amendment XXIII. Electoral votes for District of Columbia

Amendment XXIV. Poll tax prohibited

Amendment XXV. Dealing with incapacitation of the President

Amendment XXVI. The age of suffrage is 18

Amendment XXVII. Congress can raise its own salary but only effective next term

This is the “supreme” law of the United States of America (see Article VI) and as such defines the axiomatic basics of what is deemed right and wrong in this country. It prescribes how power is obtained and used to the end that everyone subject to such power behaves accordingly. The nation has coercive powers over its citizens. In our system we citizens have some protections. These are established here.

The goal is a nation in which people can thrive with minimal interference from their social compact (government) and with minimal threat from those, both inside and outside, who hold fundamentally different beliefs or aspirations.

As one who was raised in this country and taught some appreciation for the liberties we have, I do not disagree with these axioms except in certain details. For example, I think that the power to directly tax income and the IRS, the agency that embodies this power, are fundamental mistakes. As I have mentioned, however, I do not see how any of these founding principles are derived from anything in the Bible except in the most broad and vague sense, e.g., “freedom is a good thing.” Even there, the Bible does not major in any of the themes, such as personal freedoms or protection from unnecessary interference from authority, “human rights,” and other concepts that are so core to our national conscience. These ideas, rather, derive from philosophies of The Enlightenment, many of which fight against established religion (not to claim that established religions during The Enlightenment had much to do with the major themes of the Bible either, however).

Although I have shown the Constitution to be far from “perfect” as a document (even typographically) I still subscribe to the general belief that this government by the people, for the people, and of the people is vastly superior to anything tried before. After all, it enables me to conduct this examination of fundamental beliefs at home, fearing nothing more serious than an animated discussion of political detail, while exploring the next frontier, outer space, as a livelihood. Things could certainly be much worse!

© 2005 – 2006 Courtney B. Duncan