I am an American. I say this with no overtones of pride or regret. It is simply a statement of fact. I was born in Boston, Massachusetts in 1942 and grew up in Los Angeles, California. I have been living in Brussels, Belgium since 1974.
The reason I mention all this is because being an American living abroad, I am considered to be somewhat of an expert on the United States, its history, its laws, its customs, etc. I am frequently solicited by my non-American friends and acquaintances to explain something they have recently heard about this wondrous country across the ocean because they simply don’t have the background to understand it. I say this sheepishly because Europeans know more about my native country than most people in my native country know about theirs. They also care more about my native country than most people in my native country care about theirs.
A key element in things they have heard about the United States in recent years (particularly since the advent of Donald J. Trump) has to do with the vaunted U.S. Constitution, officially known as the Constitution of the United States of America.
The Constitution of the United States of America is indeed a remarkable document, being the foundation of the world’s first secular democracy. Established in1788, it clearly departs from the age-old concept that certain people are born to rule (hereditary kings, queens, emperors, empresses, etc.). As Americans are fond of saying, “Anyone can grow up to become President.” And as history has shown, this is all too true—and sometimes very tragic.
Another common saying among Americans, often voiced at the top of their lungs, is: “It’s my constitutional right!” Indeed, it is uttered so often that it has become virtually banal. And like many oft-repeated slogans, most people who say it really don’t know what they are talking about.
This is why I believe that the Constitution of the United States of America richly deserves a place on the list of what I like to call “extraordinary ordinary things.”
Is America a Democracy?
Americans are constantly being told that they live in the world’s No. 1 democracy by their own politicians, and often also by the politicians and people of other countries. This is because due to its wealth (gross national product) and power (military and political), the United States for a very long time has had no equal.
But what do we really mean when we say that the United States is a democracy, and does it fit the bill?
Apparently not. Schoolchildren across the country daily are required to recite the Pledge of Allegiance, in which they are not affirming fealty to American democracy but rather to the American republic. It reads as follows: “I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation, under God, indivisible, with liberty and justice for all.”
The Pledge of Allegiance, written in 1892, has undergone four revisions since then. The controversial phrase “under God”, which seems to run counter to the founding principle that the U.S. was to be a secular rather than a religious nation, was added to the Pledge its fourth revision in 1954.
The word democracy does not appear anywhere in the Declaration of Independence, the 1776 document that declared the intention of the 13 British colonies in North America to completely separate from the mother country in order to directly govern themselves. Neither is democracy mentioned in the Constitution of the United States, the bedrock document on which the country was founded and continues to be governed.
Finally, if you read the debates that went on about formulating the Constitution in the 1787 Constitutional Convention and the debates about ratifying the document by the 13 former British colonies, you will find that many (if not most) of the nation’s founding fathers did not consider democracy to be a particularly attractive form of government.
The term democracy derives from two Greek words: 1. demos means people and 2. kratos means power or rule. In the minds of many of the nation’s founders, democracy as originally defined is essentially unworkable except for extremely small groups of people, not for larger groups, cities, provinces, and countries. This is why at the beginning the powers of the people, while considerably greater than in a hereditary monarchy, by modern standards were still extremely limited. The democratic freedoms today so closely associated with the United States slowly developed, often at the cost of significant conflict, over the more than two centuries since the Constitution was ratified in 1788.
The world in general—and Americans in particular—harbor a number of fallacious ideas about the Constitution of the United States of America, the bedrock of the American republic. Here are some of the most important.
The Declaration of Independence and the Constitution are complementary parts of the same document.
Many people (Americans and others) seem to believe that the Declaration of Independence and the Constitution of the United States were written and ratified more or less at the same time, i.e. that the Constitution in some respects was an extension of the Declaration. Although they have certain complementarities, the fact is, they had essentially nothing to do with each other.
The Declaration of Independence, signed in Philadelphia on July 4, 1776, was an unequivocal statement that the objective of the war, which broke out in 1775, had become complete separation of the 13 American colonies from the mother country Great Britain rather than simply redress of grievances. The Constitution was drawn up 12 years later in 1787 and ratified in 1788. Its purpose was to meld the now 13 independent sovereign nations, established by the defeat of Great Britain in 1783, into a single country called the United States of America.
The two documents are philosophically aligned. Both are based on the idea that all people have certain fundamental rights that governments are created to protect. These rights are inherent in all people by virtue of their being human. They are not bestowed by a government and must not be surrendered to the government under any circumstances.
This radical new idea is probably best expressed in the preamble to the Declaration of Independence, which states:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness.
However, this is not the first paragraph of the Declaration. It is preceded by the opening paragraph that sets out the clear and specific purpose of the Declaration:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel the separation.
The Constitution establishing the new country of the United States of America was widely popular and gleefully received.
Many people seem to believe that the Constitution came into being on wave popularity and good feeling i.e. the founding fathers got together and almost immediately agreed on how the new nation was to be structured and governed. The fact is, the idea of melding the 13 former British colonies, now independently sovereign, into a single country was highly controversial—so much so that it seemed as if it might never happen. The battles over what the Constitution should and should not contain, and then the battles to get it ratified by the now 13 sovereign nations so that it could be put into effect, were monumental.
A key sticking point was that the proposed document did not explicitly spell out the specific rights of the citizens of the new country. When no agreement could be found, a compromise was reached. The Constitution to be submitted to the former colonies for ratification would not include such specific guarantees. However, if the Constitution were accepted, a list of proposed specifically spelled-out rights would immediately be submitted to the states of the new country for ratification as amendments to the Constitution. And this is what happened. This list of specific rights, comprising the first ten amendments to the Constitution, is what has become known as the Bill of Rights.
The United States of America was founded as a Christian nation.
I was tempted to approach this idea as a question rather than as a statement (Was the United States founded as a Christian nation?) because the topic has long been, and still is, the subject of considerable controversy. The idea that the U.S. was founded as a Christian nation is incorrect for two fundamental reasons: culture and legality.
Culture. It is true that most of the founding fathers made frequent references to God or the Creator. However, a number of the founding fathers were declared or probable deists, not Christians. That is, they believed in God but not Christianity, e.g. Alexander Hamilton, Benjamin Franklin, Thomas Jefferson, James Madison, Thomas Paine, etc. There may also have been some closet atheists among them. In the 1700s, avowing one’s atheism was a cultural non-starter.
Legality. Proponents of the Christian nation hypothesis are fond of pointing to the famous line from the Declaration of Independence (July 4, 1776): “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.” However, this document has no legal standing. As noted earlier, its purpose was to declare that the objective of the war that had broken out in 1775 was no longer simply an improvement of relations between the 13 colonies and Britain, but rather total separation of the13 individual colonies from the mother country.
The only legal foundation is the Constitution of the United States of America, ratified in 1788, more than a decade after the Declaration of Independence. The Constitution makes no appeal to God, the Creator, or any other such term. The only reference to religion in the Constitution is in Article 6: “. . . no religious test shall ever be required as a qualification to any office or public trust under the United States.”
The legally secular nature of the new country was reinforced on December 15, 1791, by ratification of the multi-faceted First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.”
The intended secular nature of the U.S. was further reinforced in 1797 when President John Adams introduced, and the Senate unanimously ratified, the Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli of Barbary. Better known simply as the Treaty of Tripoli, this legal document was drawn up to promote peace between the U.S. and the Barbary Coast, then comprising the middle and western coastal regions of North Africa, what are now Algeria, Libya, Morocco, and Tunisia. Article 11 of the treaty states: “As the government of the United States of America is not in any sense founded on the Christian Religion, as it has in itself no character of enmity against the laws, religion or tranquility of Musselman, and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.“
Nevertheless, the debate continues.
The United States judicial system was founded on the Ten Commandments.
Many well-meaning Americans earnestly believe that the Ten Commandments underpin the U.S. judicial system. However, if this were true, it would be a direct violation of the Constitution. As noted above, the First Amendment to the Constitution explicitly states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first four commandments are religious prescriptions and therefore would be unconstitutional. They are:
1. And God spake all these words, saying, I am the Lord thy God, which have brought thee out of the land of Egypt, out of the house of bondage. Thou shalt have no other gods before me.
2. Thou shalt not make unto thee any graven images or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth: Thou shalt not bow down thyself to them, nor serve them: for I the Lord thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me; and showing mercy unto thousands of them that love me, and keep my commandments.
3. Thou shalt not take the name of the Lord thy God in vain; for the Lord will not hold him guiltless that taketh His name in vain.
4. Remember the Sabbath day, to keep it holy. Six days shalt thou labor, and do all thy work: But the seventh day is the Sabbath of the Lord thy God: in it, thou shalt not do any work, thou, nor thy son, nor thy daughter, nor thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates: For in six days the Lord made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the Lord blessed the Sabbath day and hallowed it.
The U.S. Constitution was written by the same people who wrote the Declaration of Independence.
This misconception probably arises from the ubiquitous use of the term “the founding fathers,” which to many minds means the people who prosecuted and won the war against Great Britain and then went on to found the new country called the United States of America. The fact is, only five of the people who signed the Declaration of Independence also signed the Constitution. These were George Clymer, Benjamin Franklin, Robert Morris, George Read, and Roger Sherman.
To reduce the confusion between signers and supporters of the Declaration of Independence and/or the Constitution, many historians suggest abolishing the misleading term “founding fathers” and replacing it with two terms: 1. signers of the Declaration of Independence (or simply “signers”) and 2. framers of the Constitution (or simply “framers”).
The United States was founded when the 13 former British colonies ratified the Constitution to create a new country.
The Constitution stipulated that only nine of the 13 original colonies needed to ratify the document for it to go into effect. In other words, even if not ratified by all of them, the new country would be formed and could begin organizing itself as soon as nine former colonies agreed to it. The remaining four colonies would then be free to join (or not join) the new country any time later. In the occurrence, number nine was New Hampshire, which ratified the Constitution on June 21, 1788. The document actually went into effect on March 4, 1789, with the inauguration of George Washington as the first President of the United States.
As noted earlier, adoption of the Constitution was highly controversial, leading to tough battles for and against it in all of the states. When George Washington was elected the first President of the United States in November 1788, North Carolina and Rhode Island still had not ratified the Constitution and thus did not participate. New York had ratified the Constitution in June 1788; however, since it had failed to select its presidential electors in time, it also did not participate in the election.
The U.S. Constitution was conceived to protect the individual states from encroachment by a central government.
This is both true and false.
After defeating the British in 1783, the 13 former colonies, now independent sovereign countries, faced the challenge of how to work together to everyone’s benefit. The first attempt was known as the Articles of Confederation and was ratified in1781, even before the end of the Revolutionary War in 1783. However, the Articles of Confederation turned out to be woefully inadequate. Under its highly restrictive provisions, the central government, such as it was, proved to be too weak to be of much use.
For example, the central government could borrow money, but had no way of raising revenues to pay it back. This was because funds to run the central government were assessed to the states; there were no direct taxes on individuals. However, the states were sometimes reluctant to pay their assessed contributions. Some states paid nothing at all. Others paid only enough to cover the interest on the national debt, but not enough to help pay down the debt.
In short, the central government established by the Articles of Confederation was perpetually on the edge of bankruptcy, with no way of doing anything about it. What was needed was a somewhat stronger central government. This required a new relationship between the states and the central government which, at the very least, would put the fledgling United States of America on a more stable financial footing.
It is therefore incorrect to say that the U.S. Constitution was designed to limit the powers of the central government. On the contrary, its purpose was to increase the powers of the central government—and specifically its powers to assess and actually collect taxes.
While recognizing the need for a stronger central government, at the same time the states were jealous of their independence and fearful of a central government that would have too much power. Therefore, when the Constitution that would create the United States of America was being drawn up, each section and each line was carefully scrutinized to ensure that the central (federal) government would be assigned only those powers actually needed to make the new country effectively function—and no more.
Needless to say, this led to numerous rancorous debates, producing a final document with which no one was really satisfied. Some were so dissatisfied that they strenuously fought against its ratification among the 13 former colonies.
Thus, far from being hailed as a clear, concise, and obvious blueprint for a revolutionary new kind of country, many denigrated the Constitution as too many compromises gone too far. So vehement was opposition to the Constitution that its opponents nearly blocked it from being ratified, i.e. the United States of America came perilously close to never even being born.
The role of the United States Supreme Court is to determine whether or not laws are constitutional.
This of course is what the Supreme Court does; however, this role is not explicitly assigned to it in the Constitution. The Court asserted this right in the case of Marbury vs. Madison in 1803. The right of the Court to declare federal and state laws either constitutional or unconstitutional has been challenged many times since, but never overthrown.
The U.S. Constitution specifies that the Supreme Court must consist of nine justices.
No it doesn’t. The number of justices who make up the Court is left for Congress to decide. During the Court’s history, the number of justices has ranged from as few as five to as many as ten. The number has been nine since 1869. In a celebrated clash with Congress, in 1937 President Franklin Roosevelt tried to add six more justices in an attempt to create a Supreme Court more favorable to his New Deal economic policies. Congress turned him down.
The U.S. Constitution prescribes primary elections to choose candidates for the offices of president and vice president.
It must never be forgotten that the president and vice president are elected by the individual states through electors (who all together constitute the Electoral College), not directly by the people. This system was established in part to preserve as much as possible the sovereignty of the 13 former colonies that at the conclusion of the Revolutionary War had become independent sovereign nations. Each state consults its citizens as to whom the state’s electors should vote for as president and vice president; however, the Constitution does not prescribe the form of this consultation.
Today, prior to the general election, the majority of states run primary elections to help the different political parties choose their candidates. Others use a caucus (a kind of town meeting) for the same purpose. Still others do neither. This is strictly the prerogative of each state, and what they decide to do is constantly changing.
People in all states can vote for any of the candidates for president and vice president.
Bear in mind that the United States was founded as a federation of 13 independent sovereign nations. The Constitution was designed to create a central (federal) government with sufficient authority to effectively function while preserving as much sovereignty as possible for the individual states. This overwhelming desire to protect sovereignty (state’s rights) led to what may appear to be a rather bizarre anomaly.
There is no national ballot. Each state has its own set of qualifying requirements for who will and who will not appear on the ballot presented to its voters.
Today, it is unthinkable that the candidates for either the Democratic Party or the Republican Party would fail to meet the qualifying requirements to have their candidates put on the ballot in any of the 50 states. However, this is not true of the so-called minor parties, whose candidates for president and vice president may qualify to appear on the ballot in some states but not in others.
For example, in the 2012 election, Barack Obama and Joe Biden for the Democratic Party and Mitt Romney and Paul Ryan for the Republican Party qualified to be on the ballot in all 50 states plus the District of Columbia (Washington, D.C.), as would have been expected. However, Gary Johnson and Jim Gray for the Libertarian Party qualified in 48 states plus the District of Columbia. Jill Stein and Cheri Honkala for the Green Party qualified in only 36 states plus the District of Columbia. Virgil Goode and James Clymer for the Constitution Party qualified in only 26 states, and so on.
The U.S. Constitution requires that the president and vice president must be elected together as a team.
This has been a tradition in U.S. presidential elections for so long that it seems that it must have always been this way. However, it is only a tradition. The original text of the Constitution required the electors in each state to cast two votes for president among all of the eligible candidates. The candidate who gained the highest number of electoral votes became president; the candidate who gained the second-highest number of electoral votes became the vice president. It was not necessary for them to run as a team, nor did they even have to be from the same political party.
The flaw in this system became apparent in what is sometimes dubbed “the disastrous election of 1800.” Thomas Jefferson and Aaron Burr both received the same number of electoral votes. As prescribed by the Constitution, the tie was submitted to the House of Representatives for resolution. This proved to be no easy task. The House voted on the question 35 times before Jefferson finally won on the 36th ballot. Thus, Thomas Jefferson became president while Aaron Burr became vice president.
To preclude another such election debacle, on December 9, 1803, Congress passed Amendment 12 to the Constitution; it was ratified by the states on June 4, 1804, ahead of the presidential election later that year.
Rather than casting two votes for president, Amendment 12 requires electors to separately cast one vote for president and one vote for vice president. And this is still the situation today. Thus, it is still technically possible for the electors to choose a Democrat as president and a Republican as vice president. The likelihood of this happening in the foreseeable future seems to be remote in the extreme. However, 50 or 100 years from now, who knows?
The U.S. Constitution requires each state to cast all of its electoral votes for the presidential and vice-presidential candidates who win the popular vote in the state.
No it doesn’t, for the very good reason that if this had been a requirement, there never would have been a Constitution in the first place.
Remember, the United States was formed by then 13 independent sovereign countries who insisted that the president and vice president should be elected by the states, not directly by the people, which was the origin of the electoral vote system. Any prescription on how the states should use their electoral votes would have been considered a serious infringement of their sovereignty (state’s rights). Throughout history, states have changed their method of apportioning their electoral votes; it has never been imposed on them.
Today, 48 of the 50 states and the District of Columbia (Washington, D.C.) use a “winner-takes-all” system, which means that the winner of the popular vote in the state gets all of the state’s electoral votes. The two exceptions are Maine and Nebraska, which use proportional voting systems, i.e. electoral votes are split among the candidates roughly in proportion to the total of their popular vote.
The important thing to remember is, it is the states that decide how to use their electoral votes, not the Constitution.
For clarification, each state is apportioned electoral votes according to its population. This is why California, the most populous state with a 2020 population of just over 39 million can cast 55 votes in the Electoral College, while Alaska with a 2020 population of less than 1 million (730,000) and Delaware also with a 2020 population of less than 1 million (991,000) can cast only three votes in the Electoral College.
The U.S. Constitution prescribes the separation of church and state.
This is both true and false.
It is true that the Constitution has a prescription against the government getting involved in religion. In the body of the document, Article Vl says, “. . . no religious test shall ever be required as a qualification to any office or public trust under the United States.” The only other reference to religion in the Constitution is in Amendment 1, which says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Separation of church and state is a rather colorful restatement of this fundamental principle. The phrase, although in a slightly different form, was first used by President Thomas Jefferson (third President of the United States) to reassure religious minorities that they would be protected under the Bill of Rights, the collective name for the first 10 amendments to the Constitution. Here is Jefferson’s full comment on the subject.
To Messrs. Nehemiah Dodge and Others, a Committee of the Danbury Baptist Association, in the State of Connecticut Gentleman, The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist Association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, and in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing. Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation on behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect and esteem. Th. Jefferson, January 1, 1802
The Bill of Rights is made up of the first 10 amendments to the U.S. Constitution.
This idea is both true and false.
The first 10 amendments are commonly called the Bill of Rights because, for the most part, they specify key rights of which the people of the United States are assured, such as the right of free speech, the right of freedom of religion, the right to trial by jury, etc. These 10 amendments were part of a package of 12 amendments submitted to the states for ratification in 1791.
As noted earlier, many delegates to the Constitutional Convention, held in Philadelphia, Pennsylvania, from May 26 to September 17, 1787, wanted these rights to be incorporated into the body of the Constitution itself. However, the battles over drafting and approving the final document were so fierce, the best the proponents of these rights could do was to secure a guarantee that they would be submitted to the various states once the Constitution was ratified by the former colonies and the new country went into operation.
Two of the proposed amendments failed to be ratified by the necessary three-fourths of the states and therefore were not adopted into the Constitution. However, they did not die, because no time limit was set for ratification by the states. An 11th amendment, which was, in fact, the second on the list at the time, was adopted as the 27th Amendment to the Constitution as recently as in1992, some 200 years after it was first proposed.
The 12th amendment, which was, in fact, the first on the original list, sought to modify the clause already in the body of the Constitution prescribing how the number of members in the House of Representatives should be apportioned to each state according to their populations. Since it has no time limit, technically this amendment could still be adopted. However, the method of apportioning the number of representatives to the states according to the original Constitution has been in force for so long, the eventual adoption of this two-century-old relic would seem to be highly unlikely.
The president has the power to veto a proposed amendment to the U.S. Constitution to prevent it from being submitted to the states.
The president enjoys strong veto powers under the Constitution, but this is not one of them. Amending the Constitution is strictly a matter between Congress and the states. A proposed amendment does not need to be approved by the president, nor can he veto it. However, he is free to comment on it and to campaign for or against its adoption.
The Constitution designates English as the official language of the United States.
Unlike many other countries, the United States has no official national language or languages. English has become the de facto (practical) common language of the country, but it is in no way de jure (prescribed by law). If the United States ever does designate an official language or languages, it would probably be done by an act of Congress, not by an amendment to the Constitution, which would be a long, cumbersome, and divisive process.
The U.S. is a union of 50 states.
No one is likely to argue otherwise; however, as a point of law, this may not be the case.
The Constitution expressly prohibits a new state from being created within the jurisdiction of any other state. At the approach of the U.S. Civil War (1861–1865), feelings in Virginia ran high as to which side the state would be on. Certain counties within the state strongly favored the Union while other countries strongly favored the Confederacy. A split seemed inevitable.
Even though the United States did not recognize the right of states to secede (this was a principal reason for the war), when Virginia joined the Confederacy it was argued that technically it was no longer subject to the prohibition of the Constitution on forming a new state within the jurisdiction of another state.
West Virginia, created from the 50 northwestern counties that voted to break away from Virginia, became the 35th state on June 20, 1863.
The protections of the Constitution apply only to U.S. citizens.
This is one of the most dangerously misunderstood aspects of the Constitution—often by people who claim to be the Constitution’s staunchest supporters.
Certain passages and phrases explicitly state only “citizens” are afforded certain rights, such as the right to vote or to hold certain public offices. However, when the terms “resident” or “person” are used instead of citizen, these rights and privileges encompass everyone, citizens and non-citizens alike.
Nowhere is this more evident than in the Bill of Rights, the first 10 amendments to the Constitution, in which the word “citizen” is never mentioned. Most often the term used is “the people,” as in the vaunted First Amendment, which states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
As a specific example, anyone charged with a criminal offense is guaranteed the same due process protections as everyone else, citizen or non-citizen. These protections include the right to a speedy and public trial by jury, the right against unlawful searches and seizures, the presumption of innocence until proven guilty, the stipulation that the prosecution must prove a defendant guilty rather than the defendant having to prove his or her innocence, etc.
Washington, D.C., the official seat of the U.S. federal government, is officially located in the United States.
Not so. As odd as it may seem, the federal capital of the United States officially is not located anywhere in the United States itself.
The clue is in the name Washington, D.C., where D.C. stands for District of Columbia. The 13 original American states could not agree on which state the federal capital should be located. So as a compromise, they agreed that it should be located in none of them. Instead, the states of Maryland and Virginia agreed to cede small bits of their territories to create the District of Columbia as the official seat of the federal government. However, this solution led to a bizarre anomaly.
Remember, Americans do not elect the president and the vice president directly; this is done via the individual states. This meant that people who were officially residents in D.C. could not cast a vote for either. Thus, many of the people who were actually running the federal government could not vote for either the president or vice president who led it, nor could they vote for any member of the Congress (House of Representatives, Senate). This anomaly was partially remedied by ratification of Amendment 23 to the Constitution in 1961 granting D.C. three votes in the Electoral College for the election of the president and vice president, but still no voting representation in Congress.
And that’s where the situation still stands, with the following nuance. D.C. is represented in the House of Representatives by a delegate who is not allowed to vote on the House floor but who can vote on procedural matters and in congressional committees. D.C. residents still have no representation in the Senate.
The following well-known phrases appear in the Constitution of the United States.
While many people believe some or all of these phrases appear in the Constitution, none of them actually do.
- “We hold these truths to be self-evident, that all men are created equal”
Source: Declaration of Independence
- “Life, liberty, and the pursuit of happiness”
Source: Declaration of Independence
- “A new nation conceived in liberty and dedicated to the proposition that all men are created equal”
Source: Gettysburg Address
- “Government of the people, by the people, for the people”
Source: Gettysburg Address
- “Ask not what your country can do for you; ask what you can do for your country.”
Source: John Fitzgerald Kennedy
- “From each according to his ability, to each according to his need”
Source: Karl Marx
Here are some other words and phrases that many people believe appear in the Constitution, but don’t: congressional districts; electoral college; executive order; executive privilege: God: innocent until proven guilty; judicial review; marriage; martial law; no taxation without representation; political party; right to travel; slavery; separation of powers.
The Constitution and Computing
How could the very modern technology of computers have any fundamental impact on a political document that was written in 1787 and went into effect in1789, more than two centuries ago? Superficially, the answer is obvious. Any computer connected to the internet can be used to research and confirm any passage of the Constitution in seconds, and then read a plethora of learned commentaries on the significance of the passage on modern life.
However, the relationship between computing and the Constitution goes considerably deeper. For example, in 1987, Kenneth L. Kraemer and John Leslie King, both at the University of California, Irvine, published an extensive paper titled “Computers and the Constitution: A Helpful, Harmful, or Harmless Relationship?” As they noted, the opinions about the impact of computers on the Constitution had already become strongly polarized. They wrote:
Far to one side in this debate, computers form part of a demonic vision; an Orwellian nightmare in which autocrats eliminate democratic government and individual freedom through computerized surveillance. This view has been prominent over the years, beginning in 1964 with Vance Packard’s popular book, The Naked Society, and it remains a strong theme in both popular literature and scholarly works . . . Far at the other side of the debate, computers form part of a beatific vision of efficient, effective, and truly democratic government. While seldom articulated in a single place, this vision is incumbent in works that laud the computer’s role in eliminating waste, fraud, and abuse; streamlining the functions of government; and permitting electronic voting and plebiscites.
These endpoints embrace a spectrum of widely divergent views about the role of computers in democratic government and raise the basic question of whether computers and computerization are altering or will alter the functioning of American constitutional government.
As part of this special 200th-anniversary observance of the American Constitution, this paper assesses the implications of computers within the constitutionally-defined structure, processes, and function of government in the United States. This topic is especially interesting because the original Framers of the Constitution could not have foreseen the introduction and massive deployment of computer technology, so they established no precedent to guide the use and influence of such technologies within the governmental system.
They then focused their attention on four fundamental areas where computer technology and the functioning of the federal government as defined by the Constitution could come into conflict.
1. Interactions between the relative power among the branches of the federal government—legislative, executive, judicial—in the context of their performance of their constitutional duties and the role they play in governmental affairs. One of the fundamental principles of the Constitution is to check the central power of the national government by dividing it into three essentially equal, independent, and sometimes competing branches. However, the differential rate of computerization among the three branches has the potential to undermine the constitutional checks and balances by providing substantive procedural, functional, or symbolic advantage to one or more branches.
2. Interactions between and relative power among the national government and other governments in the federated governmental system. The construction of national information systems such as those in criminal justice and the growing linkage of federal-state-local information systems such as employment, tax, and welfare systems is viewed by some as increasing the power of the national government and nationalizing, or at least delocalizing, state and local policy and programs.
3. Interactions and relative power distribution between “government” and the “people,” both individuals and groups. The increased sharing of computer-based information on individuals and groups within the society by all branches of government is viewed as having the potential to subtly and pervasively undermine individual freedoms.
4. Functions of the political processes that result in the election and appointment of officeholders under the structure provided by the Constitution. The exploding use of computer technology in political activity, including political party management, fundraising, public opinion monitoring, and direct-mail campaigning, has the potential to change the balance of power among various factions in the political system even if it does not change the constitutional structure of the government system
A 2017 article by journalist Brad Jones in Futurism magazine also raised the alarm. It was titled “The U.S. Constitution Is Being Undermined by Computer Code.” He wrote:
The U.S. Constitution gives residents the right to due process. However, there are concerns that computer algorithms are now undermining its capacity to do so. Agencies in charge of public services responsible for everything from criminal justice, to health, to benefits and other means of financial support distributed by the government are using algorithms to increase efficiency as the 21st century moves on. These agencies decide who is granted bail, who is prioritized for certain services—all clearly matters that have a huge effect on a person’s life.
The algorithms and scoring systems used to make these decisions are often completely private. Given the impact they can have, there are calls for more transparency”
In 2019, computer game designer and internet blogger Chris Crawford made the link between the Constitution and computing quite explicit in an article titled “The Constitution Is Like a Computer Program.” He listed at least four analogies.
The Constitution is in many ways analogous to a computer program. Like a program, it specifies a set of procedures for carrying out a task. In the case of the Constitution, the task is the governance of the United States of America.
The Constitution has variables, just like a computer program. The variables in a computer program are numbers, which can be interpreted as numbers, letters, pictures, sounds, movies, or other things. The variables in the Constitution are officers of the government. Like a computer variable, the Constitution’s variables are permanent but contain different values at different times. Thus, the variable “President” contained “Lincoln” from 1861-1865, and “Eisenhower” from 1953–1961. The array “Senator” has contained many different values over the years, and the array “Representative” has contained thousands of different members over the years.
The Constitution is mostly comprised of algorithms: algorithms for deciding who occupies what offices; algorithms for how a law is passed; algorithms specifying the powers of the different branches; algorithms preventing certain actions from being taken by the government.
Like most computer programs, the Constitution was written before the programmers had a clear idea of how it would work; they were just guessing based on their understanding of history. They knew that their program would probably have some bugs, so they built in an internal debugging system called “constitutional amendments.” Theoretically, this made the Constitution infinitely flexible, capable of dealing with just about any new developments. Nevertheless, they knew that it was a first stab at a very difficult problem and they fully expected that, in a few decades, they’d have to start over and write a new Constitution. That never happened; we’re still stuck with V1.0.
Well, actually, it’s not V1.0. We’ve made a lot of amendments along the way, so, to be honest, we’re really on V27.0.
After going through some more rather technical analogies between the Constitution and computing, Crawford concludes by writing:
Yet there remain all sorts of flaws in the Constitution that the original authors could not possibly have anticipated. For example, the Constitution protects freedom of speech, assembly, and the press, but it does not protect freedom of radio, television, or the internet. We sorta winked and nudged and finessed our way past that one . . .
On the other hand, the Second Amendment is utterly obsolete (the controversial amendment that guarantees Americans the right to bear arms). It made perfect sense when “bearing arms” meant having a musket and a sword . . .’ (Today) arms include weapons capable of killing scores of people in a few minutes . . . .
Over the years, we’ve struggled with the task of keeping the Constitution up to date, but we’ve fallen hopelessly behind the problems. This happens with computer programs, too. For example, the Macintosh operating system was first introduced in 1984, and it was a great OS at the time. Over the years, they improved it with System 2.0, 3.0, and so forth, all the way up to System 9.0. But by that time, the operating system was an ugly mess of patches, hacks, and new features piled on top of a rickety and primitive foundation. Apple bit the bullet and started all over with System 10.0. They threw out everything from the old operating system and wrote a completely new operating system from scratch. It was the only way to keep up with the much-improved computer technology . . .
So here we are with Constitution 27.0, and it’s such a huge mess that appointing a single Supreme Court justice who interprets a comma differently than another justice (see the Second Amendment) can dramatically change the law.
Having assiduously laid the groundwork for it, Crawford signs off his exegesis with a radical, but in his mind seemingly ineluctable; proposal.
Folks, it’s time to clean up this mess. We need a new Constitutional Convention to write a new Constitution that recognizes the existence of the 21st Century.
Of course, that won’t happen. We’ll keep muddling along until another bug in the Constitution comes along. Just like Boeing did with its 737 Max 8. Oops.
The suggestion that the Constitution should be scrapped and that a new one should be written from scratch is not unique to Crawford, nor is it in any way new. It has been around for decades. But what has been around considerably longer, probably almost from the beginning, is a fundamental difference between what the Constitution is and what it isn’t.
The Constitution of the United States of America is often vaunted for being so concise. Compared to the constitutions of many other countries, its some 4,400 words makes it perhaps the shortest such document in the world. This is both a blessing and a curse.
It is a blessing because it means it can be easily read in a reasonable amount of time by anyone so inclined to do so. Reading the much more voluminous constitutions of many other countries (not all countries have constitutions) can be quite an arduous chore, so few people ever do.
It is a curse because it means that much of what it says—and what it means by what it says—is open to interpretation.
Structurally, the Constitution has two main parts. One part describes the three branches of the federal government: executive (president, vice president), legislative (House of Representatives, Senate), and judiciary (federal counts). Here, the language can be very precise, even punctilious.
The other part is more a statement of principles, most of which are not clearly spelled out. The prime example is the First Amendment, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Laudable thoughts, but what do they mean in practice? In particular, how do you define a religion?
In the United States., the definition of a religion for the purposes of the First Amendment means that all you have to do is declare that you are a religious organization in order to be treated with kid gloves by the federal government. This includes significant tax benefits and other privileges not afforded non-religious groups. The same is true with regard to freedom of speech. You can say just about anything in the name of free speech—and people do.
To demonstrate just how ridiculously easy it is to create a religion in the United States and reap the significant financial benefits of doing so, in 2016 comedian John Oliver did just that. The name of his fictitious church was Out Lady of Perpetual Exemption. For the full story and a good laugh, follow the link.
Another example of contentiously imprecise language in the Constitution is the Second Amendment, which states: “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.”
Anyone who has paid any attention to American history knows that this text has been litigated decade after decade after decade, and still the controversy continues.
Such interpretable, and therefore potentially contentious, passages occur elsewhere in the Constitution. They can be, and have been, the subject of endless legal confrontations. The necessity of interpreting certain key passages of the Constitution has given rise to two philosophical camps. Roughly speaking:
- “Strict constructionists” argue legal rulings should reflect as closely as possible the intent of the original writers (framers) of the Constitution. Thus, they contend that the right of Americans to bear arms is virtually absolute and that any attempt to regulate the right to bear arms should be considered unconstitutional.
- “Liberal constructionists” argue such interpretable passages of the Constitution must evolve or otherwise become freakishly and detrimentally out of date. Thus, they contend that the right to bear arms as conceived in 1791 meant things such as single-shot pistols and muzzle-loading muskets, not the rapid-fire automatic pistols and machine guns we know today. Had they been available when the amendment was written, such arms probably would have been specifically excluded.
Americans can be justly proud that the Constitution of the United States was the first to recognize that national political structures should reflect the will of the people, not hereditary rulers. However, it is far from perfect, to which its 27 amendments (including Amendment 18 which was subsequently nullified by Amendment 21) bear witness. However, its lack of precision over vital principles virtually ensures that fierce battles will continue over interpretation (strict constructionists vs. liberal constructionists).
As Polonius in Shakespeare’s “Hamlet (act 2, scene 2) reminds us, “Brevity is the soul of wit.” However, with regard to the Constitution of the United States of America, brevity has also long been the source of never-ending division and conflict. Short of some kind of radical reform, it seems destined to continue to be so.
Whether reform comes through more amendments, a constitutional convention, or some as yet unimagined solution, the current situation is clearly untenable. Something has got to change.