We’ve had two lectures and two homework assignments covering the Constitution. At this point, you know more about the Constitution than 99% of the public. You probably know more about the Constitution than most of our politicians!
Why do people know so little about the Constitution? Because there are political reasons not to teach or talk about the Constitution. The Constitution imposes limits on government power. It stands in the way of globalism. It ensures accountability. Above all, the Constitution reduces the power of elected officials and the media. There is also nothing newsworthy about the Constitution. You never see the Constitution on the evening news, or a picture of a president or congressman reading it.
Even law school students fail to learn the Constitution. They enormous time and money on law school, but at the end do not know much more about the Constitution than when they started. But one-quarter of the bar exam, which everyone must pass in order to practice law, is on the Constitution. Those who do learn the Constitution have an enormous advantage.
Knowing the Constitution helps non-lawyers also. Almost everything today implicates constitutional issues. What are your rights if you’re told you cannot chop down a tree on your property? Or if you are in a car that is stopped by the police? Or if want to stage a protest against something government is doing? Learn the Constitution once, use it for a lifetime. It’s the law of our land.
II. Why is the Constitution so Successful?
Let’s pause for a moment and consider why the Constitution has endured and thrived for over 200 years, producing the most productive society the world has ever known.
What is the secret to its success? Why is it such a marvelous piece of work? Think of your own reasons for a moment.
Here are my reasons why the Constitution is so great:
1. It was the product of prayer, which began each day’s deliberations. This set the tone and sought God’s guidance and blessings.
2. It was supervised by George Washington, a completely selfless leader. His refusal to seek power or control required everyone else to act likewise.
3. It embraced rule of law rather than rule by man, rejecting all forms of nobility and rejecting even a special title for the president.
4. It welcomed and effectively used the input of 55 earnest, dedicated persons. When coordinated, the output of many can far exceed the output of a few.
5. It was designed for approval by a public that was skeptical of government.
6. It completely ignored the media.
Perhaps you have your own suggestions, or disagree with some of mine above. At any rate, this is worth reflection: why is the Constitution one of the greatest documents of all time? Why has it been so respected and successful? Where would this country be without it?
Anything expressed in language is immediately subject to different interpretations. The Constitution could not avoid this problem. Sometimes interpretations can be a ruse for attempts to change the intended meaning.
By way of example, let’s look at the Double Jeopardy Clause of the Fifth Amendment. One of our students thinks it is the most important clause in the Bill of Rights. This Clause guarantees that no one “shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” Where did it come from? What does it mean?
It’s easier to state what it means than to figure out where it came from. In it simplest terms, it means a particular government cannot try a criminal defendant again after he has been acquitted. There are nuances beyond that basic rule, but this is the easiest way to remember it.
In Roman law, the Digest of Justinian required that “the governor should not permit the same person to be again accused of a crime of which he had been acquitted.” The Roman jurist Paulus remarked that “after a public acquittal a defendant could again be prosecuted by his informer within thirty days, but after that time this cannot be done.”
England claims to have started the modern version of protection against double jeopardy in the 1170s, based on the murder of Archbishop Thomas Becket after he had dispute with King Henry II. The perpetrators were tried and convicted in church (ecclesiastical) courts, which the King said prevented them from being retried in his own courts. The murderers were knights of the King’s court, so he wasn’t anxious to retry them anyway.
The famous English legal scholar, Sir William Blackstone, described the protection against double jeopardy as the “universal maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offence.” That was just prior to the American Revolution.
But last year, English Prime Minister Tony Blair proposed allowing retrial of criminal defendants in England in order to strengthen victims’ rights. So the English form of the rule is not as strong as the American form.
Among the colonies, only New Hampshire had a clause in its constitution protecting against double jeopardy. When Maryland ratified the Constitution, it called for addition of this civil liberty.
But New York was the 800-pound gorilla, meaning it had enormous influence. It demanded a double jeopardy clause when it ratified the Constitution and called for another constitutional convention. New York endorsed this version: “That no person ought to be put twice in jeopardy of life or limb, for one and the same offence; nor, unless in case of impeachment, be punished more than once for the same offence.
James Madison responded to New York’s demand by proposing this clause: “no person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offence.” But this is not the version that was ultimately adopted, as the Founders preferred Blackstone’s language.
Why? To minimize problems of interpretation. Blackstone’s language forbids a second trial regardless of the outcome of the first. Protection against double jeopardy guards against multiple punitive ordeals, not just successive punishments.
But ambiguities still remain. The federal government, for example, asserts the power to prosecute someone who was acquitted in state court for the same crime. The theory is that the federal government is a sovereign different from the state government, and thus can act indepedently.
Let’s turn to the Second Amendment: “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.”
It’s language is sloppy. The preamble (the first half) allows an argument by those who favor gun control to claim the Amendment protects only a “well regulated Militia,” not an individual right to bear arms. Gun control advocates claim the preamble limits the scope of the remainder of the Amendment.
Supporters of the right to bear arms rebut this by saying that all able-bodied men were considered part of militia at the time this Amendment was ratified. Thus the right is held by everyone capable of using guns. Moreover, the preamble appears merely to be background to what follows, rather than a limitation on it.
What do you think?
IV. Legislative History
The Constitution is a model of clarity compared with what Congress passes each year. Ambiguities pervade laws passed by Congress. Often the congressmen argue among themselves, and then pass language that is a compromise. They may not even agree what the language means at the time it is passed.
Senators like Ted Kennedy make comments on the Senate floor and in committee reports about what they feel the statutes mean. Sometimes lengthy descriptions of intent are inserted by a few senators into these reports. Courts then pick up on these comments to find meanings that may not have been shared by most of the supporters of the statutes.
The reports and statements by congressmen in connection with passage of a bill are known as its “legislative history.” For most of our history, it was popular for courts to rely heavily on legislative history in interpreting a statute. To combat this, Presidents Ronald Reagan and the first George Bush began attaching their own interpretations of statutes to what they signed into law.
What did the framers of the Constitution do? They insisted that all notes and viewpoints be destroyed at the end of the constitutional convention. They did not want any “legislative history” to influence the interpretation of the Constitution itself. Only James Madison preserved his notes, which were not published until many decades later.
Several on the Supreme Court, such as Justice Scalia, feel that legislative history should have no influence in interpreting a statute. The text of the statute alone should define its meaning. What do you think?
V. Congressional Powers
Now we turn to Congress, beginning with the powers that the Constitution gives it.
Taxing Power: Congress can tax either to raise revenue or to regulate an activity. Some taxes are designed to discourage sales, such as taxes on gasoline and cigarettes. Neither Congress nor the states can tax exports.
Spending Power: Congress can spend money on any public purpose. Virtually any spending can be considered “for the common defense and general welfare.” However, Congress may not regulate the general welfare independent of spending.
Commerce Power: Congress has exclusive power to regulate all interstate and foreign commerce. Congress may regulate any activity that has an effect on interstate commerce.
War Powers: Congress alone declares war and establishes and supports the military. Congress may also make rules for military courts, over which federal courts have no general authority. Congress can impose economic regulations (e.g., controls on wages and prices of goods) during wartime.
Property Power: Congress has exclusive power over all federal lands and property, of which there is a great deal. Congress also runs the District of Columbia, which is not in any state.
Intellectual Property Power: Congress sets the laws for patents, copyrights and trademarks, which are called “intellectual property” because they are abstract products of intelligence rather than physical property.
Bankruptcy Power: Congress establishes uniform bankruptcy laws for the nation.
Postal Power: Congress establishes and runs the U.S. Post Office. No competition is allowed unless Congress agrees to it (as it did for expensive overnight services like Federal Express)
Money Power: Congress coins money and also sets standards for weights and measures.
Citizenship Power: Congress can exclude aliens and determine the procedures for people to become citizens.
Admiralty Power: Congress sets the laws for the seas.
What’s left? Congress can also expand its authority under these powers with the “Necessary and Proper Clause,” also known as the “Elastic Clause.” Congress can make any law that is proper for executing any power granted to any part of government, not just Congress. But there must be an underlying, specific grant of power in addition to the Necessary and Proper Clause. For example, Congress could not pass laws establishing local police departments because there is no grant of power to the federal government in that area.
VI. How Laws are Made
The basic process for passing federal law is as follows: A committee in the House of Representatives drafts a new statute. If the committee approves the bill, then it is sent to the House Rules Committee, which will dictate the rules for debate and amendment by the full House prior to a vote. If it ultimately passes the full House, it then proceeds to a committee in the Senate, which may revise it before approving or rejecting it. If the Senate committee approves it, perhaps in revised form, then it goes to the full Senate for passage. Amendments may be proposed by any senator, and any senator may try to block by a vote by arguing indefinitely (this is known as a filibuster). In the Senate, 60 votes are necessary to end a filibuster and force a final vote.
If it passes the Senate, then it is compared to the House version. If they were identical, then it proceeds directly to the president for approval or rejection. But if the House and Senate versions are different, then it must go to a specially appointed joint committee representing both chambers. They attempt to resolve the differences and present an identical version for new approval by the House and Senate. If the revised version is approved by both the House and Senate, it then goes to the president.
If the president signs the bill in ten (10) days (excluding Sundays), or fails to return it without a signature and Congress is in session, then it becomes law. If the president vetoes the bill, or fails to return it in ten (10) days (excluding Sundays) and Congress is no longer in session (the “pocket veto”), then it does not become law. (A famous example of the pocket veto was President Lincoln’s refusal to sign his own Party’s Wade-Davis Bill in 1864, which would have imposed harsh penalties on Confederate officials.) Congress may attempt to override any type of veto, but it needs 2/3 approval in both the House and Senate to do so. See Article I, Section 7, clause 2 (p. 320).
Overrides of vetoes were very rare prior to President Andrew Johnson. Only three presidents have been overridden ten or more times: Presidents Andrew Johnson, Harry Truman and Gerald Ford. The reason is simple: each faced a Congress that was dominated by the opposing political party. Republican President Reagan vetoed 78 bills of Congress, but was only overridden nine times. That is remarkable given his principled positions and the overwhelming Democratic control of the House of Representatives during his presidency.
The Republican-controlled House voted to override President Clinton’s veto of the ban on partial-birth abortion, but the Senate lacked the 2/3rd majority required. It was not until President Bush was elected in 2000 and the Republicans captured the Senate in 2002 that now it appears this bill will be enacted into law. With Bush agreeing to sign the bill, only a majority (rather than 2/3rd) vote is necessary in Congress to enact it.
VII. Elections – The Three-Way Race.
States determine the procedures for electing their congressmen. Some use “run-offs”, some do not.
A “run-off” consists of a special election between the two top vote-getters, when no one attains 50% on Election Day. For example, if John Smith received 48% and Mary Doe procured 47%, and minor party candidates totaled 5%, then a run-off would feature an election between only John Smith and Mary Doe a few weeks later. That ensures the winner attains at least 50%.
States that do not utilize “run-off” elections would simply declare John Smith the winner on Election Day, despite failure to receive 50% of the vote.
In our presidential elections, do we utilize a “run-off”? (No.) Do we have something similar? (Yes, the Electoral College requires that the House of Representatives picks the president if no one obtains a majority of electoral votes.)
When there is no run-off, occasionally (but very rarely) a candidate can win because his opponents split their vote. This happens less often than the media pretend. Can you think of reasons why it is rare for someone to win because his opponents split their vote?
I can think of two examples of presidents who won with less than 50% of the vote, because their opponents split their vote. Can you? (Woodrow Wilson, 1912; George W. Bush, 2000)
A senator who won due to vote splitting was conservative James Buckley in New York in 1970.
California is holding an election on October 7 to determine whether to recall Governor Gray Davis and, if so, choose his replacement. Supporters of liberal Republican Arnold Schwarzenegger want conservative Republican Tom McClintock to pull out of the race to avoid vote-splitting. Schwarzenegger is ahead of McClintock in the polls, but could lose to the only major Democratic candidate Cruz Bustamante. Should McClintock withdraw from the race?
1. A recent controversy was whether the federal government can build a “do not call list” and prohibit companies from calling numbers on the list. Congress, Senate, the President, and apparently a majority of the public feel strongly that this is desirable and constitutional. Many people are tired of being interrupted during dinner by a telemarketer calling to solicit business. What do you think? What about free speech and free enterprise?
2. A similar issue arose with respect to door-to-door salesmen. Some towns, to monitor these salesmen, require them to register. A religious group objected to the registration requirement. Your view?
3. Currently there is no law protecting the builders of unoriginal databases, like listings of names in a phone book, against unauthorized copying. You could copy someone else’s phone book and sell the listing for your own profit. Is that fair? Congress is proposing a law to prevent the copying of someone else’s database. What clause might give Congress this power? Would you support such a bill?