U.S. Constitution Online

Answers From the FAQ, Page 8








Q142. "What was the first constitution of the United States?"

A. Some teachers, thinking they can be tricky with their students, will ask this question. Don't get me wrong, it is a good one, but you have to be careful how you answer.

If the question says "What was the first Constitution of the United States?" (note the capital C), then the answer is that there has been one and only one Constitution of the United States, and it is the same one currently in effect.

If, however, the question is posed as above, with "constitution" spelled with a lowercase C, then the answer is more tricky. The Articles of Confederation would qualify as the first constitution of the United States, where a constitution is defined as the most basic document of the law. But the trick is that the Articles were never called a constitution, at least not in the document itself, so you have to know enough about the Constitution to know that it replaced something, and that that "something" could be considered a constitution.

Finally, if the question is "What was the first constitution in the United States?" (note the word "in" instead of "of"), then the answer has to be New Hampshire's first constitution, which was written by a congress that opened in December 1775, and which completed its work on January 5, 1776.

Q143. "What are the duties of the Chief Justice of the Supreme Court?"

A. The Chief Justice of the Supreme Court is only mentioned once in the Constitution. The mention indicates that the Framers assumed there would be a Chief, and that the Chief would have more to do than the one thing; but beyond the one Constitutional duty, the Constitution is silent about the Chief. The one thing, by the way, is buried in Article 1, Section 3: the Chief Justice presides over any impeachment trial involving the President.

That having been said, the Chief Justice does have other duties, but they are by law, rule, or tradition, and not a part of the Constitution. In the Supreme Court, the Chief has one vote, just like any other justice. If the Chief is in the majority on any vote, he decides who writes the opinion of the majority (this duty falls to the most senior justice of the majority if the Chief is in the minority). The Chief begins questioning in oral arguments and sits in the center of the array of justices in Court. He also is the "chair" of the conferences the justices have in closed session. The Chief is the person who traditionally swears in presidents at inaugural ceremonies. The Chief is also the head of the federal judiciary, and is often at the phalanx calling for things like raises for federal judges and more security in federal courtrooms.


A. The short answer is: No.






















Q149. "What are some of the weaknesses of the Constitution?"

A. Of all the questions asked about the Constitution, this is actually one of the most common — the most frequently asked. The problem with finding an answer is that it is no simple question. If you asked an Anti-Federalist what were some of the weaknesses of the Articles of Confederation, they may not have been able to come up with a single one, but we can come up with many, given our historical perspective.

That having been said, let's discuss the weaknesses of the original Constitution, unamended. First, it had no bill of rights. Bills of rights were common in state constitutions at the time, but the Framers felt one to be unnecessary and even dangerous to liberty. However, of all the arguments of the Anti-Federalists, the lack of a bill of rights was one of the most compelling, and the omission was quickly corrected. Second, the method of presidential selection, with the first place candidate becoming president and the second place candidate becoming Vice President, was flawed, mostly because the Framers failed to foresee political parties. The flaws were spotted quickly, and fixed with the 12th Amendment.

I consider the protection of slavery to be a major flaw. The Constitution probably could not have been a success without some protections for this infamous practice, but it didn't really do anything to make things any better. At the least, it could have mandated a phase-out of slavery over several decades.

Some consider the vagueness of some constitutional provisions to be a flaw — others consider that a feature. Regardless, there are places where the Framers could have been more clear, but usually those are evident only in hindsight. You can see what some others have felt are weaknesses by looking at how some have wanted to replace or amend the Constitution.

Q150. "There has been a lot of talk in the news lately about 'presidential signing statements.' What are they and where are they in the Constitution?"

A. A presidential signing statement is a document that the President attaches to a bill as he signs it, officially making the bill a law. The statement, which has relatively long history, can be anything, from a note adding the President's thoughts about a law to one completely disagreeing with the law (making the signing statement an alternative to a veto). The signing statement has become news lately because President George W. Bush has attached signing statements to bills that have said, in essence, I acknowledge this bill, but I reserve the right to not follow the law in some instances once I sign it.

There is no provision in the Constitution for a presidential signing statement. These statements are "extra-legal," meaning they exist outside the context of the Constitution. There is nothing to say they can or should be attached — but there is also nothing saying they cannot be. However, the Constitution is clear that the President will carry out the laws passed by Congress. There is no wiggle room in Article 2, Section 3.

So what good is a signing statement, especially one that says the president might not follow the law? That remains to be seen — there have not been any Supreme Court cases dealing with signing statements, let alone contradictory ones. However, given the explicitness of the Constitution, it seems to me that any failure to carry out a law based on a signing statement would not be looked upon favorably by the Congress or the courts.

It should be noted that if the President disagrees with a bill, the Constitution provides a method for the bill to be challenged: the veto. As noted above, a signing statement disagrees with the law has no effect on the law. A veto is the only way the President can affect the bill, though if the President feels a veto would not be politically expedient, a signing statement might be used to express that disagreement.

Q151. "Rudy Giuliani seems to be running for President in 2008. But in 2002, Giuliani was given an honorary knighthood by Elizabeth II. I'm wondering if this would place a restriction upon his candidacy?"

A. The relevant part of the Constitution is Article 1, Section 9, Clause 8, which states: "No Person holding any Office ... shall, without the Consent of the Congress, accept of any ... Title, of any kind whatever, from any King, Prince or foreign State." Basically, no one in the government is to take any present, gift, or title from any foreign power.

The first issue is that Giuliani is not a part of the U.S. government — and the Emoluments Clause is pretty clear that it applies to current employees of the government. The Plain Meaning test would probably let Giuliani slide by if he had a title; but a sitting President would be barred from accepting the title.

However, the Emoluments Clause does have a caveat — the acceptance can be authorized by Congress, and Congress has done just that. In 5 USC 7342, Congress authorized the acceptance of "order[s], device[s], ... [or] award[s]" from foreign governments, so long as they are authorized by the employee's department and are of minimal real value. In this code, the President, Vice President, and all members of Congress are considered employees, as are spouses and soldiers.

Generally, titles bestowed upon foreign governments are honorary only, especially within the United States. Many people in government and in private life have been given titles, such as Bill Gates, Ronald Reagan, George H.W. Bush, Norman Schwartzkopf, Wesley Clark, Jerry Lewis, Bob Hope, Collin Powell, Tom Foley, and Charlton Heston.










Q154. "I think that the citizens of the United States are under the assumption that the Federal government actually prints money, which is actually not a right that the federal government has."

A. The ability of the government to print paper money is certainly not an enumerated right. Yet we all use U.S. dollar bills everyday. How is this possible?

An original draft of the Constitution expressly permitted the government not only to borrow money, as Article 1, Section 8, Clause 2 notes, but also to "emit bills." In Madison's Notes from August 16, 1787, the subject of paper money was debated at some length. Gouverneur Morris warned that if paper money was allowed, "The Monied interest will oppose the plan of Government." John Mercer thought it unwise to "deny [the Government] discretion on this point." But others thought paper money was a deal-killer. George Read likened the words, if included, to the "mark of the Beast," and John Langdon said he'd rather reject the entire plan than include the words. On a 9-2 vote, the words were struck. So how is it possible for us to pay for anything with paper money today? Shouldn't all currency be coins with inherent value, like silver and gold?

Gold and silver are not panaceas. Gold and silver coins have issues of their own, and the evils of paper money were outweighed by the evils of manipulation of purity and weights, not to mention convenience. By the Civil War, "greenbacks" were issued by the government and used in all manner of commerce. Not everyone liked this, and legal conflict ensued. The Supreme Court eventually had to rule on the question. In Knox v Lee, 79 U.S. 457 (1871), the Court ruled that paper money was not unconstitutional: "The Constitution nowhere declares that nothing shall be money unless made of metal." The Court argued that the Congress can manipulate the value of precious metals to the point where it can be rendered as inherently worthless as paper (the Congress could enact a law that says that 10-dollar silver coins weigh 400 grains in one year and 500 grains the next, effectively devaluing the silver). The Court even noted the arguments of the Framers against "emitting bills," but wrote that the Framers, one, could not anticipate all governmental needs, and, two, they allowed the Congress to do what was necessary and proper to carry out its powers. In this case, that includes printing paper money.


Q155. "Who has more power, the Congress or the President?"

A. Wow, such a small question with no small answer. It is a good question, though.

Constitutionally speaking, the Congress is by far the most powerful of all the branches of the government. It is the representative of the people (and, originally, the states), and derives its power from the people. As such, it is given power to do the people's bidding and to rule over the people. It can set taxes, can raise armies, can declare war, can suspend habeas corpus, can impeach the President or judges, and can set laws touching the lives of every person in the nation. This is a lot of power, and the framers made sure that the power could not be wielded without balance. The Congress itself has to agree between its two houses on every law; the President checks the power of the Congress with the veto; the judiciary checks the power with judicial review. Even with these checks, though, the Congress is, on paper, the most powerful branch.

On paper, the President does not have a lot of power. He or she is the commander is chief of the armed forces and has almost exclusive power over foreign policy (though the Senate has to ratify any treaty and the Congress always has the power of the purse to influence foreign policy). The President also nominates judges and justices and maintains the cabinet, but these powers do not, in and of themselves, seem very powerful. In practice, however, the President can be very powerful, especially when the Congress and the President work together, such as when the presidency and the Congress are held by a single political party. In this case, it is common for the President to set policy that the Congress merely rubber-stamps. In such a case, the President can be said to be very powerful. The popularity of the President can also come into play — if the President is very popular with the people, the Congress might not be willing to challenge the President's policies.

The answer to the question, then, depends on the context of the question. The Constitution clearly makes the Congress the most powerful of the three branches of government. Depending on the circumstances, however, the President might have more influence on Congress than one would think based on the separation of powers outlined in the Constitution.



Q157. "Is it necessary for new states to ratify the US Constitution in order for admission?"

A. When a state applies for admission, it is presumed that the very act of application signals agreement with the Constitution in its current form. There is no need for the state to specifically ratify it. It is conceivable that a state might, as one of its first acts, pass a resolution explicitly stating that it ratifies the Constitution or some other such language. This, however, would have no effect on the Constitution itself.

Q158. "If an attorney is an officer of the court — is it legal for attorneys to be members of Congress — since they would then be serving in both the judicial and legislative branches of government — or is it permissible to serve in two separate branches concurrently?"

A. It is unconstitutional for a person to serve in two branches of the government at once. However, a lawyer, being an "officer of the court", is not a member of the judicial branch in that sense, so a lawyer is not then barred from being a member of the legislative branch solely because of that profession. The Supreme Court ruled on a case like this in Cammer v U.S. (350 US 399 [1956]) — if a lawyer is not an officer of court that can be summarily tried for misconduct, it follows that a lawyer is not an member of judicial branch, barred from serving in the legislative branch.

Q159. "Wikipedia says 'The Electoral College elected Washington unanimously in 1789, and again in the 1792 election; he remains the only president to receive 100% of electoral votes.' Yet your Electoral College pages for those years show that other people got electoral votes. Can you explain the discrepancy?

A. The electoral college can be divided into two parts — the pre-12th Amendment part and the post-12th Amendment part. Before the 12th Amendment was passed, the members of the college cast two ballots for president. They had to be for different people, and at least one had to be from a different state than the elector. The winner was the person with the most votes, and the vice president was the person with the second most votes.

In the electoral college of 1788, every single elector voted for George Washington on one of their ballots. There were eleven other vote-getters, with John Adams garnering the most of the second ballots. This is seen as a unanimous vote for Washington, then, because every elector voted for him — there were 69 electors, and Washington got 69 votes. The other 69 votes were scattered among the other eleven.

The same thing essentially happened in the 1792 electoral vote. There were 132 electors, and 132 votes for Washington. Adams got the bulk of the second ballots, sharing them with three other men.

In no other pre-12th Amendment election did anyone get a vote from all of the electors. In the post-12th Amendment world, where separate ballots for the president and vice president are cast, there has never been an election where any person received every single vote cast. The closest anyone has come in the modern era is in 1936, when Franklin Roosevelt got 98.49% of the electoral votes.

Q160. "In some blog posts lately, I've heard that Hillary Clinton can't be Secretary of State, but some other posts say she can be because of the Saxbe Fix. What's this all about?"

A. One of the concerns of the Framers of the Constitution was corruption in government. One of the ways they used to prevent corruption is the system of checks and balances, but that's a system-wide solution. They also knew human nature and realized that they should prevent individual conflicts of interest whenever they could. One basic example is the requirement that a Representative be a resident of the state they represent.

Another is the Emoluments Clause, also known as the Incompatibility Clause and the Ineligibility Clause. This clause has two parts to it. The first part says that no member of Congress can be appointed to a position in the government that was created during the member's term in office. This was to prevent a person from creating a job for themselves.

The second part is relevant to Clinton, and is where the Saxbe Fix comes in. This part also says that a member of Congress cannot take a position in government where the salary for that position was increased during the member's term. In Clinton's case, she was a member of the Senate when the Congress approved a raise in pay for the cabinet secretaries, including the Secretary of State. It would seem, then, that this clause would prevent Clinton from taking the job until her term expires.

Enter the Saxbe Fix. As you may imagine, this is not the first time a member of Congress has been asked to take a position in the government, and raises in pay for these positions, while not common, are not rare either. The fix is this: Congress reduces the salary for the position in question to the pre-raise amount. Then, the theory goes, there is no conflict, and no bar to the person taking the position. The name stems from William Saxbe, who Richard Nixon appointed to be Attorney General in 1973. Saxbe was a Senator from Ohio at the time. The fix was devised by the acting Attorney General and passed by Congress. The fix was also used by Howard Taft in 1909, for his Secretary of State Philander Knox (though it was not called, of course, the Saxbe Fix in 1909). The Fix was also used by President Jimmy Carter and President George H.W. Bush.

Constitutional literalists, or strict constructionists, feel the fix violates the letter of the Constitution, which it surely does. However, the Fix is in line with the spirit and intent of the Constitution, so satisfies those who do not consider themselves strict constructionists.

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