Ten things you may not have known about your Constitution : Socratic Rhythm Method

by Matt Barr

Ten things you may not have known about your Constitution

Have you read the Constitution lately? Probably not, but that's fine. Unless your interest is purely academic, it doesn't really matter what the Constitution says anymore. Maybe you've noticed.

But that's cynical, and our present interest is purely academic. Or maybe not. Some of the more inscrutable material in the Constitution really should have practical application, unlike, say, the Commerce Clause, which has almost nothing to do with what's actually written in Article I, Sec. 8. (Or executive powers! many of you just exclaimed. Whatever.)

I haven't read the Constitution lately myself, but I have an excuse: My copy's been resized to fit on a mousepad, and as you can see, it's hard to make out. But I know things. I know things you may not know about the Constitution. Here are 10 of them, in no order whatsoever.

Your Congressperson's vote on a bill need not be published. According to Article I, Sec. 5, the yea and nay votes on any bill or question need only be recorded if one fifth of those present for the vote ask for it. Each house must "keep a journal of its proceedings," but it doesn't have to include vote breakdowns.

The President can't get him a raise. Federal judges' compensation can't be lowered during their tenure, but by omission can be increased (and with life tenure during good behavior, that's probably a good thing!), and Congresspersons can vote themselves a raise,* but the President's remuneration can't be either "increased nor diminished during the Period for which he shall have been elected."

* The 27th amendment purports to make Congressional raises effective only after an election intervenes, but it doesn't work that way.

The Fourth Amendment doesn't require probable cause before someone or someplace may be searched. We discussed this at some length a few months ago when libertarians were aghast that the nominee for CIA Director said so. Warrants may only be issued upon probable cause, but the Amendment doesn't require a warrant for a search to be reasonable. Next time through the TSA airport security line, tell them you refuse to be searched because they have no probable cause. First be sure to let your ride picking you up from your destination airport know you'll be late.

The Preamble isn't what they say it is in Schoolhouse Rock. If you're my age, you can sing the Preamble, thanks to those scamps at Schoolhouse Rock. Except you're leaving out a part. Where they sing "We the people, in order to form a more perfect union..." it's really "We the people of the United States." Realizing this may make you use an interjection, which is generally set apart from a sentence by an exclamation point (or by a comma, when the feeling's not as strong).

No, the fact the very first sentence of the Constitution contains the aggravating grammatical error "more perfect" doesn't qualify as something you may not have known about the Constitution. Everybody knows that.

Congress neither must propose nor approve amendments to the Constitution. It's entitled to have its hare-brained ideas considered by state legislatures or conventions if two thirds of each house passes one, but "on the Application of the Legislatures of two thirds of the several States, [Congress] shall call a Convention for proposing Amendments," and then get out of the way. (Art. V) This is how you would maybe amend the Constitution to rein in Congressional power, if you were so inclined, without their having to be on board.

The word "freedom" appears once in the Constitution, and not in the un-amended main part. "Liberty" appears three times, once in the Preamble and twice in amendments. "Power" or "powers" appear 36 times.

Nothing in the Constitution provides for the protection of unenumerated rights. This is a little inside baseball to libertarian constitutional types, but the Ninth Amendment -- "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" -- is almost always misread to say something to the effect of "rights not mentioned by this Constitution are protected by this Constitution." Which, on its face, is kind of nonsensical. There are lots of rights not mentioned in the Constitution, but the Constitution itself doesn't, by its terms, protect them from infringement.

The State of the Union Address need not be an address. And it certainly need not be an address to a special joint session of Congress. The President "shall from time to time give to the Congress Information of the State of the Union," says Article II Sec. 3, which also says that "on extraordinary occasions" the President may convene both houses of Congress. The State of the Union Address jumped the shark years ago, and sooner or later some serious President with an admirable sense of priorities is going to write Congress a State of the Union memo.

Congress could remove the Supreme Court's jurisdiction in almost any case or class of cases at all. Per Article III Sec. 2, the Supreme Court must sit as the court of first resort in cases "affecting ambassadors, other public ministers and consuls, and those in which a State shall be party." And that's it! It has appellate jurisdiction "with such exceptions, and under such regulations as the Congress shall make."

The Fifth Amendment does not prohibit takings for private use. Discussed here too, riffing off an Orin Kerr post about Kelo oral arguments: "The text of the clause says that if private property is taken for public use, then just compensation must be paid. The Constitutional text doesn't address takings for private use at all." Let's go to the tape: "nor shall private property be taken for public use, without just compensation." Huh!

I've argued that the framers would no more say the government couldn't take private property and give it to some other private owner than it would say the government couldn't sell Georgia to France; it wouldn't have occurred to them that anyone would be ballsy enough to try it. But the Fifth Amendment's text simply doesn't prohibit takings for private use.

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Comments

lumpy posted:

your interpretation of the 4th strikes me as a little caddywompus... using your logic if a search is reasonable it doesn't require a warrant. So are you saying that if the police think a search is reasonable, they don't need a warrant?

Further your use of the TSA example is kinda lame. The choice to fly is a choice...you submit to search. you can refuse to submit to search and not fly. The airline This example is not the same as the NSA unwarranted wire taps, which are in clear violation of the 4th. you seem to give a parapharsed version of it... it actually says:

..."and no Warrants shall issue, but upon probable cause"... it seems pretty clear to me and most courts that Warrants are required and NO WARRANTS will be issued but upon probable cause.

the cases of "reasonable" search precedent from SCOTUS seem to be in relation to the police pulling you over and seeing drugs through the window, or fire depatment coming into your house to fight a fire and seeing illegal activity in plain sight. Those examples by their very nature cannot apply to a wiretap. Because you do not know what someone is going to say.

My prediciton is that Bush goes down 6-3 in scotus.

August 19, 2006 1:27 AM

Matt posted:

What wiretap?

Is everybody in the world obsessed with George Bush, or just in your household?

August 19, 2006 9:48 AM

Lumpy posted:

Please show me some authority for unwarranted wiretaps which supports your interpretation the 4th amendment. You might also want to send that to Gonzales too... he hasn't seemed to be able to come up with one yet.

August 19, 2006 11:42 AM

Matt posted:

If wiretaps interest me in the least, I'll post about them. Do check back often.

August 19, 2006 11:53 AM

lumpy posted:

you seem to ignore the consitutional issues which you presented. I was simply responding to your interpretation of the fourth with a current issue... unless of course you think current issues don't apply to your quaint interpretation...

August 19, 2006 12:49 PM

Matt posted:

Demanding that I produce legal authority for unwarranted wiretaps in response to the plain-English assertion that the Fourth Amendment doesn't require probable cause for a search to be reasonable is, if you'll excuse me, sort of pathological, vis a vis the President.

As interested as you seem to be in the nuances of this, you could click on the link in that section (helpfully labelled "at some length") for more.

My sense, not having paid enough attention to it to contribute anything valuable, is that the NSA wiretaps approximately six percent of the country are so up in arms about should be prohibited by the Fourth Amendment if they're not. The reason this is completely uninteresting is that there is a special court that doles out warrants for such things like lollipops at Best Cuts and avoiding that court, while arrogant and politically tin-eared, doesn't seem to me to make a constitutional difference. I don't think a wide-ranging eavesdropping program targeting U.S. citizens is constitutional, warrant or no, but if the warrants had been sought and obtained nobody would care, and half would find some other grievous sin of the Bush administration to bitch about on blogs that don't give a shit.

August 19, 2006 1:08 PM

Eh Nonymous posted:

Matt: I liked your list.

Lumpy: PLEASE, please, please, stop talking. Go get a Constitution. We'll wait.

Read the fourth amendment? It says searches must be REASONABLE. It also says that no warrants will issue but on probable cause.

Taken a moment to assimilate those two? Good. A search, if reasonable, need not be made pursuant to a warrant. All good now?

Okay. Matt, two problems.

One, the NSA warrantless wiretaps are probably not unconstitutional, despite a court decision to the contrary. Instead, they are plainly in violation of FISA, a law passed by Congress which makes it illegal to do what the President insists he has to do, despite his ability to get permission *afterwards* in a reasonably timely fashion.

That's just dumb. He broke a law, not just the Constitution.

Also, nice points about the text of the Constitution. All true. You didn't say much about the Second Amendment; as you pointed out about Bush, only 6 % of voters (or perhaps, "of citizens"?) care about whether they can own assault weapons. Or hand grenades. Or a nuclear bomb?

I did have a pick to bone with you.

Why do you find "more perfect" aggravating? I have some ideas:

- you don't like the way it sounds
- you don't understand what they meant
- you have an irrational bias against phrases like "more accurate," "less meaningful," or "more perfect."

Since perfect, as well as an absolute (good, better, almost perfect, perfect) can also useful for comparing things -

see also perfecter, butterier

- I don't see what the problem is.

By your logic, someone can't be pregnanter. Which is just ludicrous. Pregnanter is a perfectly cromulent word.

August 21, 2006 10:20 AM

Matt posted:

Again with the wiretaps! My (constitutional) problem with the NSA program is that -- again, not having paid probably enough attention -- it seems to be wide-ranging enough that it's difficult for me to see any particular search under it being reasonable. (But then I think random sobriety checks are unconstitutional.)

I think that having what is essentially a rubber-stamp warrant court makes as little difference as the "hurdle" of getting a garnd jury to indict -- it's a prosecutorial tool rather than a speedbump that helps guarantee our rights. That's why I don't think whether it was involved or not makes a constitutional difference, and why it seems really, really dumb not to have gotten the warrants. Again, though, I haven't been keeping up.

I'm waiting for someone to correct me and point out that it's not a grammatical error but a usage error. Maybe if the President could somehow be blamed.

August 21, 2006 10:41 AM

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