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Have you ever heard someone say, "That's unconstitutional!" or "That's my constitutional right!" and wondered if they were right? You might be surprised how often people get it wrong. You might also be surprised how often people get it right. Your best defense against misconception is reading and knowing your Constitution.
A lot of people presume a lot of things about the Constitution. Some are true, some are not. This page will detail some of the things that people think are in the Constitution, but are not.
One critique of this page is that it is full of nit-picks. Slavery, for example, may not be "in" the original Constitution, but it is in the original Constitution — the word may not have been there, but the concept was. This is absolutely true. But by studying the words and coming to know them intimately, we gain a better understanding of our history and how some arguments about the Constitution endure.
The Constitution was ratified in 1787, long, long before the advent of the
airplane. It provides, specifically, for a navy and an army in Article 1, Section 8. Though they were aware of
lighter-than-air flying craft, the Framers could not have reasonably provided
for an Air Force. It should be noted at the outset that the Constitution does
not provide, specifically, for the other uniformed services, the Marines and
Coast Guard. The Marines, however, as an arm of the Navy, could be excepted;
and the Constitution does provide for "naval forces," and the Coast Guard could
thus be excepted. How, then, do we except the Air Force? The first way is via
common sense — the Framers certainly did not intend to preclude the use
of new technology in the U.S. military, and because of the varied roles of the
Air Force, it makes sense for it to be a separate branch. The second (and less
desirable) way is historical — the Air Force originated as the Army Air
Corps, an arm of the Army, similar to the Navy/Marine relationship. Basically,
unless your interpretation of the Constitution
freezes it in 1789, the Air Force is a perfectly constitutional branch of the
U.S. military.
Congressional Districts divide almost every state in the United States into
two or more chunks; each district should be roughly equal in population
throughout the state and indeed, the entire country. Each district elects one
Representative to the House of Representatives. The number of districts in each
state is determined by the decennial census, as mandated by the Constitution.
But districts are not mentioned in the Constitution. The United States Code
acknowledges districting, but leaves the "how's" to the states (gerrymandering,
however, is unconstitutional [as seen in Davis v Bandemer, 478 U.S. 109
(1986), though, the intent of gerrymandering is difficult to prove]).
The concept of the presidential elector is certainly in the Constitution, but never is the group of people collectively referred to as "The Electoral College." Article 1, Section 2 speaks of "Electors," as do several of the Amendments, but never the college itself. The term comes from common usage in the early 1800's, in the same way that the "College of Cardinals" elects a pope, and is based on the Latin word collegium, which simply refers to a body of people acting as a unit. The term "College of Electors" is used in U.S. law, at 3 USC 4. For more on the Electoral College, see the topic page.
Executive Orders have two main functions: to modify how an executive branch
department or agency does its job (rule change) or to modify existing law, if
such authority has been granted to the President by Congress. Executive orders
are not mentioned by the Constitution, but they have been around a long, long
time. George Washington issued several Presidential Proclamations, which are
similar to EO's (Proclamations are still issued today). EO's and Proclamations
are not law, but they have the effect of statutes. A typical modern
Proclamation might declare a day to be in someone's honor. Historically, they
have had broader effect, such as the Emancipation
Proclamation. A typical EO might instruct the government to do no business
with a country we are at war with. Executive orders are subject to judicial
review, and can be declared unconstitutional. Today, EO's and Proclamations are
sequentially numbered. The average president issues 58 EO's a year. As of March
13, 1936, all EO's must be published in the Federal Register. The first to have
been so published was #7316, by President Roosevelt.
Executive privilege is a right to withhold information from the legislative
and judicial branches by the President or by one of the executive departments.
There is question of whether the right exists at all, a question that has
lingered since the very first President, George Washington, asserted executive
privilege in his very first term. Most times, executive privilege is asserted
for purported national security reasons. Washington, however, asserted the
privilege when the House requested details of the Jay Treaty — his
rationale was that the House has no role in treaty-making and hence no right to
request the documents. In modern times, Bill Clinton refused to simply comply
with an order to appear before a grand jury, and instead negotiated terms under
which he would appear. Richard Nixon's is the most infamous use of executive
privilege, and while the Supreme Court, in U.S. v Nixon, 418 U.S. 683
(1974), recognized that there exists a need for some secrecy in the executive
branch, but that the secrecy cannot be absolute. The Court ordered Nixon to
turn over tapes and documents that a special prosecutor had subpoenaed. More
recently, the minutes and records of Vice President Dick Cheney's energy task
force were requested and denied based on executive privilege. This case made
its way to the Supreme Court, where the Court deflected the case and sent it
back to a lower court for further adjudication.
It is often said that one of the rights protected by the 1st Amendment is the freedom of expression. This
site, in fact, uses that term in its quick description of the amendment:
"Freedom of Religion, Press, Expression." But "expression" is not used in the
amendment at all. This term has come to be used as a shorthand, a term of art,
for three of the freedoms that are explicitly protected: speech, petition, and
assembly. While the use of "freedom of expression" is ubiquitous in this area
of 1st Amendment study, it is important to note exactly what "freedom of
expression" refers to — let this be such a note.
(Absolute) Freedom of Speech and Press
The Constitution does protect the freedom of speech of every citizen,
and even of non-citizens — but only from restriction by the Congress
(and, by virtue of the 14th Amendment, by state legislatures, too). There are
plenty of other places where you could speak but where speech can and is
suppressed. For example, freedom of speech can be and often is restricted in a
work place, for example: employers can restrict your right to speak in the work
place about politics, about religion, about legal issues, even about
Desperate Housewives. The same restrictions that apply to the government
do not apply to private persons, employers, or establishments. For another
example, the government could not prohibit the sale of any newspaper lest it
breech the freedom of the press. No newsstand, however, must carry every paper
against its owners' wishes.
From each according to his ability, to each according to his needs
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