Q&A: Constitution

We the People Q&A

What is the source of the word “constitution”?

To “constitute” means to create or establish. The United States was the first nation-state to adopt a written constitution, although the original states had written constitutions since the Declaration of Independence (under the Articles of Confederation). The Founders drew on ideas from Enlightenment thinkers such as Locke and Montesquieu and thought of the word “constitution” as the best way to convey that they were creating a new system of government.


What does “our posterity” refer to in the Preamble?

Posterity refers to future generations. The Founders wanted to ensure that the Constitution would be understood as permanent, lasting beyond their lifetimes.


What does “qualified” mean?

The Constitution establishes some basic requirements for each major elected office (e.g., the President has to be 35, a resident for 14 years and a natural-born citizen), but beyond those minimal requirements, qualified is determined by the voters (for the House and Senate), electors (for the President) and the President and Senators (for Supreme Court members).


What are the characteristics of the US Constitution that sets it apart from other constitutions around the world?

There are approximately 200 written constitutions around the world. Most countries in the world have a written constitution, although some do not, including the United Kingdom. Since it was the first, the US Constitution has been a model for many other countries. Most other countries have branches of government, and some kinds of separation of powers. The presidential system (where the national leader is separately elected) is less common than the prime ministerial system (where the national leader comes from the legislative branch). As well, the US “winner-take-all” system for voting is less common than proportional representation.


How does apportionment work in the Constitution?

Apportionment refers to the number of members of the House of Representatives for each state (and therefore it affects the number of electoral college votes). The Constitution established the initial apportionment, and requires that reapportionment occur every 10 years, but exactly how many seats are apportioned is defined by federal law. Currently, there are 435 members of the House and each member of the House represents about 800,000 people. These 435 seats are reapportioned after every census (every 10 years, as required by the Constitution). State apportionment is governed by state constitutions and state law.


How do we prevent tyranny of the minority when all three branches are controlled by the same party?

The Founders didn’t envision a majority/minority defined by political party, so they didn’t envision this particular scenario. Further, the Supreme Court is not controlled by the GOP. Currently, four Justices were appointed by Republicans (Kennedy, Thomas, Roberts and Alito) and four Justices were appointed by Democrats (Ginsburg, Breyer, Sotomayor and Kagan). As well, Justice Kennedy has been a swing vote on many issues. As importantly, for all legislation (except budget reconciliation) and Supreme Court nominations, the Senate has a filibuster rule which allows a unified group of 41 Senators to block the majority.


How could the Republicans simply refuse to entertain President Obama’s nomination for Supreme Court (Judge Merrick Garland)?

The Constitution (Article 2, Section 2), give the President the power to nominate a Supreme Court Justice, the Senate the power to give “advice and consent,” and the President the power to appoint. The President used his power to nominate Garland, and the Senate refused to use its power to provide advice and consent. The Constitution does not require a branch of government to use a power, simply enumerates what powers it has.

However, the Constitution doesn’t require that hearings and a vote in the Senate occur to provide “advice and consent.” Since this was the first time that the Senate refused to exercise this power, there is no constitutional precedent. President Obama choose not to exercise his power to nominate because he viewed the Senate inaction as a barrier. However, he could have read the Constitution differently: that it gave him the power to appoint Justice Garland because the Senate didn’t actively block his nomination.


Could there be some pre-requisite level of knowledge/ understanding before being allowed to hold office?

No. It’s up to the voters to decide whether a candidate is qualified to hold public office. Just as importantly, even if we could agree on establishing some kind of pre-requisite knowledge, who would decide what knowledge is important. The Constitution assumes that the people, and their representatives, are engaged enough to make good decisions about the qualifications of a candidate and that power is checked enough so that when the people make a mistake, there is another part of government to hold that person’s power in check.


What are the powers to check the power of the President?

The system of checks and balances limits the power of the President, somewhat. The President has no law making powers — those powers are reserved to the legislative branch. The President can propose a budget, but the power of the purse resides in the legislature. The President has power of the sword, with substantial authority over foreign relations, both as commander-in-chief and as lead negotiator for all treaties.

The Supreme Court can check the power of the President as well, by employing judicial review. However, the Supreme Court has no power to enforce its rulings, so typically an action of Congress, or a willing Executive branch, is needed to uphold and enforce judicial decisions. The President can also issue executive orders that direct the executive branch over some area of policy. These executive orders can be very powerful, as they enforce already existing US law. But these are outside the Constitution.


What does the Constitution say about presidential conflicts of interest?

Actually, very little. The Constitution includes a clause (Article 1, Section 9, paragraph 8) in which all government officials are prohibited from receiving presents or “emoluments” from foreign powers without the consent of Congress. Federal law outlines potential conflicts of interest and ethics violations, based on this clause in the Constitution. However, the “emoluments clause” has never been interpreted by the Supreme Court, so it remains to be seen how the Judicial Branch might seek (or not) to interpret this clause. If the President is found to be in violation of the emoluments clause, the only likely remedy is impeachment.


How can the President be impeached?

The House of Representatives has sole power of impeachment. If a majority of members of the House vote to impeach the President, he is impeached. However, the House is under no Constitutional obligation to act if the President is found by the Supreme Court (or any other court) to have violated the Constitution. If the House were to impeach the President, the Senate would then have the responsibility to decide whether or not to conduct a trial. The Senate could decide not to hold a trial, or could hold one and then decide whether or not to remove the President from office.


Can the number of Supreme Court Justices remain at 8?

The Constitution does not define the number of Supreme Court Justices, just establishes the Supreme Court. The Judiciary Act of 1869 established the requirement that the Supreme Court has nine Justices. However, the constitutional nomination and appointment process supersedes the Judiciary Act. So, unless and until the President and the Senate agree on a nominee, the Court will remain at eight. It can remain at eight Justices indefinitely.


How much power is given to the Speaker of the House in the Constitution?

The Constitution gives the power to the House of Representatives to name a speaker, but does not define any powers of the Speaker. All powers of the Speaker of the House are based on House rules, established outside of the Constitution (and can therefore be changed by any House).


Is there any provision to prevent gerrymandering?

The Constitution establishes the requirement that the House is apportioned according to state population. However, exactly how House districts are apportioned is not specified in the Constitution. District lines are drawn according to state law. These laws can be challenged as a violation of the 14th Amendment’s equal protection clause if voters can prove that their voting rights have been violated by how the districts have been drawn. Currently, several federal courts are hearing cases on these points exactly.


Does the President have immunity from prosecution while in office?

No (with a major caveat). The President is not above the law and can still be charged and convicted of a crime. However, the President cannot be imprisoned while he is in office. The only possible way to remove the President from office is impeachment and then a trail in the Senate. The President cannot be forced to attend a trial outside of the US Senate, but the President can be deposed under oath.


Does the Constitution include the right to vote?

 The Constitution does not provide an explicit right to vote for all US citizens. Instead, the right to vote is considered a “penumbral” right – it is there, but not written directly.

  • The 15th Amendment prevents the federal government and state governments from denying the right to vote based on race or previous condition of servitude.
  • The 19th Amendment prevents the federal government and state governments from denying the right to vote based on gender.
  • The 24th Amendment prevents the federal government and state governments from creating a poll tax or any other tax to prevent a citizen from voting.
  • Finally, the 26th Amendment prevents the federal government and state governments from denying the right to vote to citizens over 18 based on age.

In sum, the right to vote exists in the Constitution, but not explicitly. Therefore, there are many ways to limit the right to vote that are not prohibited by the Constitution (e.g., Voter ID, elimination of early voting, closing polling places, etc). All of these methods are currently being challenged in federal courts.


How can the Constitution be amended?

To amend the Constitution requires 2/3 vote of both Houses of the Legislature, plus ¾ support from the States. Every year, there are hundreds of amendments proposed, and only rarely do these amendments earn a vote in either the House or Senate.

 

 

 

 

 

 

Leave a Reply

Your email address will not be published. Required fields are marked *