Article III, giving us information on the Judicial branch of government, is shorter than the sections on both Executive and Legislative. Part of this is a reminder that it is not only through the Constitution that things can be set forth.
For example, Article III tells us that there is a Supreme Court, and we know from Section 3 of Article I that there is a Chief Justice, but the number of justices is not given. We all know it's nine, it's been that way for as long as we can remember, but what we may not know is that the number is set in the United States Code (Title 28, Section 1).
One thing that is interesting is that Section 1 also refers to inferior courts that Congress can establish. Much of the legal system passes through county courthouses, and there is an appeals process there to state courts. However, there is also the a federal court system. It was something that I knew, but did not really think about until I was called to jury duty that was not reporting to the Washington County Courthouse, like I was used to, but instead to U.S. District Court in Downtown Portland.
Section 1 also refers to good behavior by the office holders, though it possibly could have used more teeth. Scalia was criticized for accepting travel on a private jet, and there have been similar criticisms of other justices, but there never seems to be any follow-up, and even in the inferior courts there is a fair amount of abuse that can happen. It is fair to say that the checks in place to balance the different branches may be less effective here.
Section 2 goes over the jurisdiction in cases. Cases that deal with maritime law, a conflict between states, or ambassadors - so often cases where there could be a question about what state or country would have authority, then it belongs under federal law. There is also the option for cases that have come up through the local systems to appeal to the federal courts. The ability to quickly settle which court will hear a case was something that could only help harmony between the states, which was one of the problems with the Articles of Confederation.
Section 2 also states that trial shall be by jury, unless for impeachment, and that trials will be within the state where the crime was committed, but still with a provision for if the crime was not committed within any specific state. (This is one good reason for the specific references to maritime law.)
Finally Section 3 gives some further definition on treason, both for what constitutes treason and the burden of proof. There must be two witnesses confirming the action, and it only consists of making war or giving aid or comfort to enemies. With the Revolutionary War so fresh in memory for the framers, it must have been important to specify that criticism of or disagreement with the government was not in itself treason. Those values would show through more in the drafting of the Bill of Rights.
Sunday, March 27, 2016
Sunday, March 20, 2016
The Constitution - Article II
As promised, we now go over the executive branch of government.
There's less on duties and powers than for the legislative branch. That is the area with the most people, and it holds the most power, a balance that must have seemed appropriate to people who were done with monarchy.
Section 1 starts with information on the election process, the term of office and compensation, the oath of office, and what to do in the event of the death or removal of the president. One thing that was not specified is if a vice president stepping in after the death of the president then makes for an acting president or an actual president. That did not get tested until the death of William Henry Harrison in 1841. Despite disagreement from some senators, John Tyler took the oath of office and simply was president. That protocol held. Some clarification on succession was added in the 25th Amendment, but that was not ratified until 1967.
The process for selecting the vice president needed to be changed much sooner. Originally the vice president would be the presidential candidate with the second highest number of votes, which meant that rivals were suddenly serving together, and maybe there were some hard feelings. This process started changing almost immediately, first with the party selecting a mate, and gradually developing over the course of the Nineteenth Century to the current system.
The other part that is getting a fair amount of mention now is the specification that the president must be a natural-born citizen of the United States, with one prominent candidate having been born in Canada, though his mother was a US citizen (though possibly with dual citizenship so a Canadian citizen as well). The last I knew, some constitutional scholars thought he was eligible, and some didn't. He may not be doing well enough for it to matter, but if it does come up, many more people will be offering opinions.
Section 2 goes over the power to make treaties - with the advice and consent of the Senate - and the presidential role as Commander in Chief. This makes a large part of the presidential duties relate to our relations - in war and peace - with other countries. It also specifies the right of the president to appoint ambassadors, ministers, justices, and so on, as well as the power to grant pardons and reprieves in federal cases.
There are two important points here. One is that when people petition the president for pardons, it is often not within his power. That came up recently when several people were petitioning (perhaps ill-advisedly) for a pardon for the subject of a documentary. Even if that person should not be in jail, that does not fall under the president's powers. Generally state and especially county governments have more to do with who is in jail, and how long they stay.
In addition there is currently some debate over whether in an election year the president should appoint someone now or wait until after the election, with some people even saying that historically it has not been done. That is a bald-faced lie. While it is not common for a need for an appointment to happen in the last year of a term (because really, how often do you even get to appoint a new justice?), in those situations the president has not waited to appoint, and Congress has not waited to confirm.
http://www.politifact.com/truth-o-meter/statements/2016/feb/14/marco-rubio/do-presidents-stop-nominating-judges-final-year/
Section 3 sets in place the State of the Union address, and also that the president shall give Congress recommendations as well. Also, "he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States".
That is more on appointments, but the presidential duty to see that the law is faithfully executed is where you might have a president instruct the Department of Justice to look into something or to quit defending something.
Section 4 gives a very brief statement about impeachment, so that there is a means of removing a president who is guilty of crimes, confirming that no one, including the president, is above the law. So when Nixon said that when he did something that made it legal because he was the president, that showed a poor understanding of his constitutional role.
That's Article II in a nutshell. Remember that you can read it at http://www.archives.gov/exhibits/charters/constitution_transcript.html .
There's less on duties and powers than for the legislative branch. That is the area with the most people, and it holds the most power, a balance that must have seemed appropriate to people who were done with monarchy.
Section 1 starts with information on the election process, the term of office and compensation, the oath of office, and what to do in the event of the death or removal of the president. One thing that was not specified is if a vice president stepping in after the death of the president then makes for an acting president or an actual president. That did not get tested until the death of William Henry Harrison in 1841. Despite disagreement from some senators, John Tyler took the oath of office and simply was president. That protocol held. Some clarification on succession was added in the 25th Amendment, but that was not ratified until 1967.
The process for selecting the vice president needed to be changed much sooner. Originally the vice president would be the presidential candidate with the second highest number of votes, which meant that rivals were suddenly serving together, and maybe there were some hard feelings. This process started changing almost immediately, first with the party selecting a mate, and gradually developing over the course of the Nineteenth Century to the current system.
The other part that is getting a fair amount of mention now is the specification that the president must be a natural-born citizen of the United States, with one prominent candidate having been born in Canada, though his mother was a US citizen (though possibly with dual citizenship so a Canadian citizen as well). The last I knew, some constitutional scholars thought he was eligible, and some didn't. He may not be doing well enough for it to matter, but if it does come up, many more people will be offering opinions.
Section 2 goes over the power to make treaties - with the advice and consent of the Senate - and the presidential role as Commander in Chief. This makes a large part of the presidential duties relate to our relations - in war and peace - with other countries. It also specifies the right of the president to appoint ambassadors, ministers, justices, and so on, as well as the power to grant pardons and reprieves in federal cases.
There are two important points here. One is that when people petition the president for pardons, it is often not within his power. That came up recently when several people were petitioning (perhaps ill-advisedly) for a pardon for the subject of a documentary. Even if that person should not be in jail, that does not fall under the president's powers. Generally state and especially county governments have more to do with who is in jail, and how long they stay.
In addition there is currently some debate over whether in an election year the president should appoint someone now or wait until after the election, with some people even saying that historically it has not been done. That is a bald-faced lie. While it is not common for a need for an appointment to happen in the last year of a term (because really, how often do you even get to appoint a new justice?), in those situations the president has not waited to appoint, and Congress has not waited to confirm.
http://www.politifact.com/truth-o-meter/statements/2016/feb/14/marco-rubio/do-presidents-stop-nominating-judges-final-year/
Section 3 sets in place the State of the Union address, and also that the president shall give Congress recommendations as well. Also, "he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States".
That is more on appointments, but the presidential duty to see that the law is faithfully executed is where you might have a president instruct the Department of Justice to look into something or to quit defending something.
Section 4 gives a very brief statement about impeachment, so that there is a means of removing a president who is guilty of crimes, confirming that no one, including the president, is above the law. So when Nixon said that when he did something that made it legal because he was the president, that showed a poor understanding of his constitutional role.
That's Article II in a nutshell. Remember that you can read it at http://www.archives.gov/exhibits/charters/constitution_transcript.html .
Sunday, March 13, 2016
The Constitution - Article I
I quoted the entirety of the preamble because it's short, but it won't be practical to do that for the articles. I am looking at the document at http://www.archives.gov/exhibits/charters/constitution_transcript.html and https://www.gpo.gov/fdsys/pkg/CDOC-110hdoc50/pdf/CDOC-110hdoc50.pdf.
Article One goes over Congress. Although we will be treating each article separately, it is helpful to know that the first three articles each cover one branch of government, and this branch is legislative. There are two concepts that come into focus here.
One is the separation of powers doctrine, which invests different powers within different bodies. Even though the British Empire had its parliament and not everything was determined by the crown, it must have still felt important to keep too much of any function in one person.
This leads to the other concept of checks and balances. We do see that somewhat here, as there is instruction for impeachment, and other powers of Congress where they could go against the will of the president. However, the phrase "checks and balances" isn't used, it's just something that can be seen in the framing.
The other nod to balance comes in having a bicameral legislature. It could be valid for a state with a larger population to have more say in some matters, but that could impose on the smaller states. Every state has the same number of senators, but representatives are allocated by population and no state will have less than one. Things may not always work out perfectly, but there is an attempt to make things fair.
Ages of eligibility and length of citizenship required for serving in both houses is set forth, as well as the length of terms and the election cycles. It would be chaotic to have every member up for election at the same time, so those terms are set forward.
We have already seen some changes. Originally senators were to be appointed by state legislatures instead of popularly elected. State populations were becoming very dissatisfied with this, so the 17th Amendment changed it, ratified in 1913. You have probably known people who remembered that happening, even if they are no longer with us.
Another significant portion of this article is the Commerce Clause, Section 8, Clause 3. Setting forth the various powers of Congress, it specifies:
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
This comes up because often people will feel that various activities should not be regulated, and while that might be true of the activity itself, once money is changing hands, that may not be true. Therefore, you might drink milk from your cow without pasteurizing it, and there will probably never be a law about that, but there might be a law about selling unpasteurized milk to your neighbors. Those laws are often made by state or local bodies, but the potential for federal legislation is there.
I have said that the Constitution as a whole is long and boring, but that is more when you are trying to read through the whole thing at once. Dividing it into sections, the text may still be dry, but it is manageable and can be interesting. I had forgotten about the 17th Amendment, but being reminded of it now, it is impressive that the process went along smoothly for so many years, and then was fixed relatively smoothly as well. They system can work.
There is also a quick reminder of the flaws, right in Section 2, where in expounding how to determine populations you only count 3/5ths of non-free persons. There will be people who will tell you that this was progressive, as it diminished the numbers for slave states, but not as much as not counting any non-free persons.
Also, in not counting non-taxed Indians, there is another reminder. If they had truly been given their sovereignty that would have been reasonable, but said sovereignty was encroached on so often, there was an issue there, even if the problem is not the actual texts.
These are reminders that for all that was good and noble in the intent of the framers, there were things that were ignoble as well, and many of the problems we have in today's society stem from our failure to eradicate our nation's baser thoughts and acts.
Article One goes over Congress. Although we will be treating each article separately, it is helpful to know that the first three articles each cover one branch of government, and this branch is legislative. There are two concepts that come into focus here.
One is the separation of powers doctrine, which invests different powers within different bodies. Even though the British Empire had its parliament and not everything was determined by the crown, it must have still felt important to keep too much of any function in one person.
This leads to the other concept of checks and balances. We do see that somewhat here, as there is instruction for impeachment, and other powers of Congress where they could go against the will of the president. However, the phrase "checks and balances" isn't used, it's just something that can be seen in the framing.
The other nod to balance comes in having a bicameral legislature. It could be valid for a state with a larger population to have more say in some matters, but that could impose on the smaller states. Every state has the same number of senators, but representatives are allocated by population and no state will have less than one. Things may not always work out perfectly, but there is an attempt to make things fair.
Ages of eligibility and length of citizenship required for serving in both houses is set forth, as well as the length of terms and the election cycles. It would be chaotic to have every member up for election at the same time, so those terms are set forward.
We have already seen some changes. Originally senators were to be appointed by state legislatures instead of popularly elected. State populations were becoming very dissatisfied with this, so the 17th Amendment changed it, ratified in 1913. You have probably known people who remembered that happening, even if they are no longer with us.
Another significant portion of this article is the Commerce Clause, Section 8, Clause 3. Setting forth the various powers of Congress, it specifies:
"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
This comes up because often people will feel that various activities should not be regulated, and while that might be true of the activity itself, once money is changing hands, that may not be true. Therefore, you might drink milk from your cow without pasteurizing it, and there will probably never be a law about that, but there might be a law about selling unpasteurized milk to your neighbors. Those laws are often made by state or local bodies, but the potential for federal legislation is there.
I have said that the Constitution as a whole is long and boring, but that is more when you are trying to read through the whole thing at once. Dividing it into sections, the text may still be dry, but it is manageable and can be interesting. I had forgotten about the 17th Amendment, but being reminded of it now, it is impressive that the process went along smoothly for so many years, and then was fixed relatively smoothly as well. They system can work.
There is also a quick reminder of the flaws, right in Section 2, where in expounding how to determine populations you only count 3/5ths of non-free persons. There will be people who will tell you that this was progressive, as it diminished the numbers for slave states, but not as much as not counting any non-free persons.
Also, in not counting non-taxed Indians, there is another reminder. If they had truly been given their sovereignty that would have been reasonable, but said sovereignty was encroached on so often, there was an issue there, even if the problem is not the actual texts.
These are reminders that for all that was good and noble in the intent of the framers, there were things that were ignoble as well, and many of the problems we have in today's society stem from our failure to eradicate our nation's baser thoughts and acts.
Sunday, March 6, 2016
The Constitution - Getting Started
"We The People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
This phrase should be familiar; many of us have memorized it in high school. Despite that, I have noticed that many people who talk a lot about the Constitution, and how great it is, or how they are upholding it and other people are violating it, seem to have no idea what is in it.
I am familiar with the partisan divide that will cause some to oppose anyone and anything because of who supports it, or because of a single issue, but still, your arguments should make sense, and if you want to make an argument or action based on the the Constitution, then do that accurately.
It is understandable that people don't read it a lot, because it is highly boring. The document is a legalistic setting forth of the nuts and bolts of a representative government - some people find that fascinating, but if you don't, that's completely understandable. However, these kinds of documents are necessary, and an appreciation of them is also reasonable.
I am going to spend the next few posts going over various sections, because this is going to keep coming up; it's an election year. If it can be an election year less dominated by the nonsense of the ignorant, that would be great.
We'll get into articles and amendments in later weeks, but first, with just this preamble, we can see the goals. The Union had not been strong enough under the Articles of Confederation. Honestly, that probably isn't studied enough. They still knew enough to know that key issues include Justice, without which it would be hard to keep the peace (domestic Tranquility). Those cannot be accomplished without the general Welfare of the citizens being promoted, and even if it could be done without Liberty, they don't want to. That will require mechanisms of defense. And even though they are considered upstarts, undertaking an enterprise that could easily fail, they want it to last, so that it will be there for their posterity. Those should be the guiding forces.
Here's the other thing that's important to know; there were some serious flaws. Under this Constitution women could not vote and slavery was allowed. Some of the founders may have been against that, but there were enough who didn't believe in liberty and equality quite that much, and the others went along with it. This meant injustice there, and it also meant that while the Federal Law had protection and sovereignty for the Indians included, that was violated over and over again.
It doesn't mean that there was no inspiration in the document. It doesn't mean that there aren't parts of the document that work really well, or at least have worked really well to a point. It's just not as good as it can be, because the people weren't as good as they could have been - an all too common problem.
So that's worth keeping in mind too. We can't be scared of finding flaws. The inclusion of an Amendment process indicates that the writers knew there were flaws. The repeal of Prohibition shows that even a supposed correction can be a flaw.
We can handle this.
This phrase should be familiar; many of us have memorized it in high school. Despite that, I have noticed that many people who talk a lot about the Constitution, and how great it is, or how they are upholding it and other people are violating it, seem to have no idea what is in it.
I am familiar with the partisan divide that will cause some to oppose anyone and anything because of who supports it, or because of a single issue, but still, your arguments should make sense, and if you want to make an argument or action based on the the Constitution, then do that accurately.
It is understandable that people don't read it a lot, because it is highly boring. The document is a legalistic setting forth of the nuts and bolts of a representative government - some people find that fascinating, but if you don't, that's completely understandable. However, these kinds of documents are necessary, and an appreciation of them is also reasonable.
I am going to spend the next few posts going over various sections, because this is going to keep coming up; it's an election year. If it can be an election year less dominated by the nonsense of the ignorant, that would be great.
We'll get into articles and amendments in later weeks, but first, with just this preamble, we can see the goals. The Union had not been strong enough under the Articles of Confederation. Honestly, that probably isn't studied enough. They still knew enough to know that key issues include Justice, without which it would be hard to keep the peace (domestic Tranquility). Those cannot be accomplished without the general Welfare of the citizens being promoted, and even if it could be done without Liberty, they don't want to. That will require mechanisms of defense. And even though they are considered upstarts, undertaking an enterprise that could easily fail, they want it to last, so that it will be there for their posterity. Those should be the guiding forces.
Here's the other thing that's important to know; there were some serious flaws. Under this Constitution women could not vote and slavery was allowed. Some of the founders may have been against that, but there were enough who didn't believe in liberty and equality quite that much, and the others went along with it. This meant injustice there, and it also meant that while the Federal Law had protection and sovereignty for the Indians included, that was violated over and over again.
It doesn't mean that there was no inspiration in the document. It doesn't mean that there aren't parts of the document that work really well, or at least have worked really well to a point. It's just not as good as it can be, because the people weren't as good as they could have been - an all too common problem.
So that's worth keeping in mind too. We can't be scared of finding flaws. The inclusion of an Amendment process indicates that the writers knew there were flaws. The repeal of Prohibition shows that even a supposed correction can be a flaw.
We can handle this.
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