Notes on the U.S. Constitution

This document contains my personal notes about certain portions of theUnited States Constitution. Areas of the Constitution that I neededclarification upon are included here, with my findings. Where ever necessaryand proper, I have included the sources for what I discovered. Where there isno source, it is most likely that I interpreted the text myself, paying closeattention to the text or looking up the meanings of certain words or phrasesnot in common usage or not common in today's vernacular.

You may wish to view thefull U.S. Constitution, orsee theGlossary,PopularNames Page, theNotes Page, or theAdvanced Topics Page, as well.

Email the Webmaster if you have differentinterpretations of the text I touch upon. I may include a "dissenting opinion"section in the future.

These notes were written by the Webmaster, and you canview his credentials.

Article II, Section 1 and12th Amendment — The Electoral College

The Electoral College is a peculiar American institution. When Americansvote for President and Vice-President, they do not actually vote for thosepeople, but for electors. These electors meet in their state capitals after thegeneral election and cast votes for President and votes for Vice-President.Though electors are pledged to the candidates of their party, there is nothingin the Constitution requiring them to so vote — and, in fact, every sooften an elector defects from his party's candidates, though the effect on theelection is usually nil. Some states have laws against electors casting such"faithless" votes, but it is unclear if anyone could actually be prosecutedunder such laws, since the electors are protected by the Constitution (thoughnot in so many words).

Jeff Greenfield, formerly of ABC News and now with CNN, wrote a veryinteresting, irreverent tale about the Electoral College, calledThePeople's Choice. It can be found on theConstitutional Bookstore Page.

For more information, see theElectoral CollegeTopic Page.

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Article III, Section 3 —Treason

The authors were concerned about the definition of treason. They thoughtthat it was used too broadly to define any dissenting opinions. Their newcountry would be much stricter about what treason was, and how one would beaccused and convicted of it.

Treason, then, is defined only as going to war against the USA, or aidingthe enemies of the USA. To be convicted, the accused must confess to treason,or be accused by two direct witnesses of the treason.

The authors were also concerned that the person convicted of treason be theonly one to suffer for the treasonous acts. The Constitution explicitly states thatthere may be no "corruption of blood," or that the children and relatives ofthe traitor not be considered traitorous simply by relation; the "noforfeiture" clause basically means that once the traitor dies, "payment" forthe crime ends.

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Article V — Amendment

Note the following small detail: the President is not a part of theamendment process. So what difference does it make when the President says thathe or she does not like a particular proposed amendment, and they will notsupport it? None. At least, not technically.

Now, obviously, the world is not sterile, particularly in Washington. When aPresident expresses reservations or dislike of an amendment or proposedamendment, it is obvious that any President worth electing knows darn well thatthe Executive has no veto over any amendment. The process is left completely inthe hands of the Congress and/or the States. However, the President, aspresumed head of a political party, has power over those in the same party -or, if not power, at least some influence.

Because two-thirds of both houses must pass an amendment, and two-thirds ofboth houses are required to overturn a presidential veto, the framers may havedecided to leave the President out for the sake of brevity. However, since thearguments of the President for the veto could change some minds between thepassage vote and the veto vote, it is more likely the Framers just felt thatamendments were something best left to the states and the representatives ofthe states.

The Supreme Court did deal with this issue, following the ratification ofthe11th Amendment. It was argued that theamendment was invalid because the amendment was not passed to the Presidentprior to being passed on to the states. But inHollingsworth v Virginia(3 USC 378 [1798]), the Court wrote (in a footnote): "The negative of thePresident applies only to the ordinary cases of legislation: He has nothing todo with the proposition, or adoption, of amendments to the Constitution."

More information on amending the Constitutionisavailable.

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Signatories

Only thirty-nine people signed the finished product of the ConstitutionalConvention. In all, seventy-four people were selected to attend the Convention,but only fifty-five actually attended. Some of these left before the Conventionwas complete, some for personal reasons, some to protest the Constitution.Others remained at the Convention until the end, but then refused to sign. Thefollowing is a list of those delegates who attended the Convention but who didnot sign the Constitution, and the reason they did not sign:

• Connecticut - Oliver Ellsworth (left early)
• Georgia - William Houstoun (left early), William Pierce (left early)
• Maryland - Luther Martin (left in protest), John Mercer (left in protest)
• Massachusetts - Elbridge Gerry (refused to sign), Caleb Strong (left early)
• New Jersey - William Houston (left early)
• New York - John Lansing (left in protest), Robert Yates (left in protest)
• North Carolina - William Davie (left early), Alexander Martin (left early)
• Rhode Island - sent no delegates
• Virginia - George Mason (refused to sign), James McClurg (left early), Edmund Randolph (refused to sign), George Wythe (left early)

The following are those who refused to attend or were unable to attend:

• Connecticut - Erastus Wolcott
• Georgia - Nathaniel Pendleton, George Walton
• Maryland - Charles Caroll, Gabriel Duvall, Robert Hanson Harrison, Thomas Sire Lee, Thomas Stone
• Massachusetts - Francis Dana
• New Hampshire - John Pickering, Benjamin West
• New Jersey - Abraham Clark, John Neilson
• North Carolina - Richard Caswell, Willie Jones
• South Carolina - Henry Laurens
• Virginia - Patrick Henry, Richard Henry Lee, Thomas Nelson

It should be noted that John Dickinson is officially listed as a "signer,"but he did not actually sign the Constitution. Dickinson fell ill during theconvention and was unable to attend on the day of signing. He authorized GeorgeRead to sign for him by proxy.

The reader may also be interested inThe FramersPage andThe Framers Data Page.

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Amendment 1 — Freedom of religion, speech,press

In my opinion, the First Amendment is the single most important part of theConstitution. It protects some of the most basic human rights and reflects aview of the dangerous places government might tread.

The ability to speak your mind is a right that Americans take for granted.Imagine being too frightened by the possible consequences of speaking out toactually do so. Your opinion would not matter — even your vote would becorrupted. Even as important is the right to petition your government —not only can you have an opinion about your government, the government mustlisten to you (though it need not heed you — but that's what electionsare for).

Some of the first colonists of the nation for which the Constitution waswritten had been seeking to escape religious persecution. The constitutions ofseveral of the states prohibited public support of religion (though some didexplicitly support or demand adherence to Christianity). Above all, the manyvarying sects of Christianity in America required that to be fair to all, therecould be preference to none. It would have been disgraceful for anyone to wishto leave the United States because of religious persecution. So the authorsdecided it best to keep the government out of religion. This is not to say thatthe United States was not or is not a religious nation. Religion plays a bigrole in the everyday life of Americans, then and now. But what the authors werestriving for is tolerance... something I fear contemporary Americans arelacking.

As for the press, the authors regarded a free press as almost a fourthbranch of government, constantly keeping tabs on the government's activitiesand actions. Though today's tabloid papers and television might give one pause,this kind of trash is a small price to pay to ensure that any news organizationcan rest assured that it can report freely on the activities of the government.Many other organizations in other nations have to worry about toeing thestate's line or be shut down. How objective do you think a reporter can be whenhis life could be ended because of a critical story?

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Amendment 3 — Conditions for quarters forsoldiers

According to theGPO,this is one of the least cited parts of the Constitution in federal caselaw. The only one the GPO does cite is an interesting case that is actuallyfairly recent (Engblom v. Carey [2nd Circuit Court]).

In 1982, a group of prison guards went on strike in New York. Some of theseguards rented housing from the prison, in a building about a half mile from theprison. When the guards struck, the National Guard was activated by theGovernor to take over for the guards. The quarters rented by the guards wereused to house the soldiers. A pair of the prison guards sued the Governor andseveral other officials on the basis that the 3rd Amendment had been violated,and that they had been denied due process under the 14th Amendment. In statecourt, the claim was summarily dismissed.

On appeal and reappeal, the Circuit Court upheld the lower court's ruling,and found that the 3rd Amendment had not been violated for several reasons;primarily, they found that the rented apartments were not required to be used(unlike the apartment of, say, a building super), and that in no other way didthe guards "own" the property the soldiers were housed in (this being atraditional test of whether someone's rights of property are being violated).On the question of due process, the Court had other opinions that you canresearch if you are interested.

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Amendment 10 — Powers of the States and Peopleunder Constitution

Note well this. Anything not expressly granted to the Federal government isreserved for the States or the People. Although this amendment is veryliberally interpreted, it is one of the tenets of the Constitution. Thisamendment is also known as the States' Rights Amendment.

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Amendment 11 — Judicial Powersconstrued.

This Amendment was designed to prevent a citizen of one state from bringingsuit against another state in federal court, modifyingArticle 3, Section 2, Clause 1. Over time, it hasalso been construed to prevent citizens of a state from bringing theirown state to federal court. 11th Amendment law is in a resurgence inthe 1990's as several Supreme Court cases make their mark (see theCurrent News Page).

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Amendment 14 — Due Process

This is one of the most used (and, perhaps, misused) parts of theConstitution. It came out of the Civil War. Basically, it says that all men 21or older will be counted to determine representation in Congress, with areduction in that count for anyone not allowed to vote; that no one in theConfederate government (or any future government of insurrection) may bemembers of the U.S. government (unless approved by a two-thirds vote); and thatall debts incurred by the U.S. to fight the Confederacy are to be paid, butnone of those incurred by the Confederacy would be.

It also states that no State shall make any law abridging the rights of anyof its citizens without due process of law. The 14th Amendment is important,but the first clause is themost important. Prior to the 14th,states were free to ignore the Bill of Rights; a series of Supreme Courtrulings made it clear that the Bill was to apply to acts of the FederalGovernment only. With the establishment of the 14th, the Bill, or at leastparts of it, is made to apply to state law, too. This clause has resulted insome good law, such as the Voting Rights Act. But States' Rights proponents areopposed to the Amendment in parts and/or as a whole.

The Supreme Court, at first, did not allow the Due Process clause to be usedto expand individual liberties (1870's and 1880's). Eventually, though, it wasused to protect more than just former slaves. In the 1900's and 1930's, itextended the clause to the protection of workers against state regulations,allowing national standards for work conditions and minimum wage to be set. Thedue process clause has been used to extend most Bill of Rights Amendments tosome extent, and is the basis for the "Right to Privacy" extended in theinfamousRoe v Wade decision. For a discussion, seethisdocument.

My opinion? Well, the Supreme Court, in the end, is the legal arbiter ofConstitutional interpretation. What they say goes. In my research, I found somecases that I agreed with and some that I did not. In general, however, I cansay that I feel that as long as those rights don't impinge on anotherindividual's rights, the rights of the individual must outweigh those of thestate, and the Due Process clause of the 14th Amendment guarantees that.

Note: some have tried to argue that because of the representation reductionclause and the implications on States' Rights, that the 14th Amendment isunconstitutional. However, since it is an amendment to the Constitution, itcannot possibly be unconstitutional. Some argue that it was passed in anunconstitutional way,which is an interesting and plausible argument. The fact remains, however, thatit is a part of our Constitution, and deserves as much respect as any otherpart, unless it is at some point repealed.

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Amendment 16 — Income taxesauthorized

On April 13, 2000, the organizationWe the People Foundation for ConstitutionalEducation, Inc. sent delegates to the U.S. capital to present evidence thatthe 16th Amendment was not properly ratified. The evidence that We the Peoplepresented is available on their web site — this site will post updateswhen available.

Cecil, of the newspaper/online column called The Straight Dope, has donesome research into some of the claims that the 16th was not properly ratified.His columnsareonline.

A very well-researched and literate "tax protester" FAQ has been publishedon the net.A good read foranyone contemplating a challenge to the income tax. There is also anorganization called "Quatloos" that aims to expose all tax evasion scams (andthere are quite a number of them).Visit themfor more information.

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Amendment 25 — PresidentialDisability

An interesting movie was made based on this amendment. Look forTheEnemy Within with Forest Whitaker, Sam Waterston, and Jason Robards. Itwas a remake of7 Days in May, which was made in 1964, before thisamendment was passed. More recently, the 25th Amendment has gotten theattention of Hollywood writers. In the filmAir Force One, thePresident's aircraft is hijacked and the Vice President is urged to declare thePresident incapacitated, though she ultimately resists the urging. In the worldof television,24 andThe West Wing featured the 25thAmendment. In24 the President refuses to attack three Middle Easterncountries that appear to have backed a terrorist nuclear explosion on U.S.soil. The Vice President assembles the Cabinet which narrowly votes to removethe President. InThe West Wing, the President removes himselffollowing the kidnaping of his daughter, fearing that he cannot make rationaldecisions about the response while he is more concerned with his role as afather.

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