A Little Constitutional Fact vs. Fiction


A mere 4,400 words, the Constitution of the United States is the shortest of all major governments.

Americans are less educated than ever about the basic concepts of their government. Some of this ignorance has morphed into myths about what can and should be done to correct issues with the government itself. Let’s separate fact from fiction:


Fiction: The Supreme Court Justices are overpaid and Congress should cut their salaries.

Fact: As horrifying as it is to believe, the current justices of the Supreme Court cannot, under the constitution, have their pay cut. In fact, this is spoken to for all federal justices in Article III, Section 1: “ The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” Translation: no matter how angry people get at a judge for their decision, they cannot have their pay cut, but their successor can have their pay cut prior to their nomination being approved by the Senate.  If voters want their pay cut while they are in office, a constitutional amendment must be passed.

Fiction: The only thing a President can be impeached for is “high crimes and misdemeanors,” and that’s why no President has ever been removed from office.

Fact: Article II, Section 4 offers some rarely-referenced clarity to this murky contention. “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” While it is highly unlikely a President would be convicted of Treason, an impeachment and conviction for bribery may be easier, though it too has not be attempted. High crimes and misdemeanors, the base charges for the only two actual Articles of Impeachment ever passed by the House, are a much lower threshold to meet, as both Andrew Johnson and Bill Clinton learned.  Long story short, a President can be impeached for any number of reasons, but bribery and treason are two “cut and dry” reasons listed in the Constitution. The latter, High Crimes and Misdemeanors, is basically a matter of “playing politics.”

Fiction: A section of a state, if it wanted to, could break away and form its own state, such as Northern California has threatened to do.

Fact: It’s a bit more complex than what politicos in the Golden State would lead one to think. According the Article IV, Section 3, northern California would have to go through a bit of wheeling and dealing to make this happen. “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” As most legislators are loath to pass any law which diminishes their own prestige or power, the chances of this actually happening are highly suspect. One one more wrinkle – nowhere in this clause does it mention a constitutional amendment in the state affected being acceptable, so it would be up to the General Assembly to grant the split, then up to Congress to agree to admission of the state – again, highly unlikely.  Even the Supreme Court has zero final say in this matter.

Fiction: The Supreme Court only hears appeals and nothing more.

Fact: The Supreme Court, under the constitution, is defined as a court of “original jurisdiction” for several matters, almost all pertaining to intergovernmental legal actions. Cases involving states as parties, ambassadors, and ministers and other consuls, when the matter is of federal nature, can be originated in the high court. It is rare, but it has happened, such as the 1892 case of United States v. Texas, where the high court deemed itself the origin jurisdiction when the federal government sues a state. Prior to that, the high court was the only court to hear cases between state governments, such as the 1838 case of Rhode Island v. Massachusetts.  Over the years, the SCOTUS has narrowed its scope of original jurisdiction, and continues to apply this very narrow interpretation as a matter of practice and course.

Fiction: State assemblies must have two houses under the constitution as a condition for statehood.

Fact: The Constitution only specifies, in Article IV, Section 4, that the federal government guarantees each state have a “Republican form of government.” Nowhere in the constitution does it state the structure or mechanisms required of that government. The current systems of governors and state assemblies is a matter of tradition and convention, not federal law. A state could, if it chooses, create a representative council of ten people elected by equal population distribution and have a one-year term for an executive called the Grand Executor, but as long as it’s a “republican” form of government, then it’s completely constitutional. Nebraska has a unicameral government – its single house, called the Senate, is also a nonpartisan chamber, meaning that no member is officially affiliated with any party. Another case is the District of Columbia. If it were to become a state (highly unlikely), its city council would likely convert to a “State Council” and its Mayor would become Governor. Again, by convention, not by any constitutional requirement.

Fiction: All elected officials to the Congress must be natural born citizens.

Fact: Article I, Sections 2.2 and 3.3 only mention the minimum age for election in each chamber, along with the minimum number of years that person must be both a resident of the United States and their respective state. Nowhere in either section does it state anything further regarding citizenship.  The only person required to be a natural born citizen of the United States to hold elected office at the federal level is the President.

Fiction: Some states did not ratify the Constitution so they are, technically, under no obligation to follow it.

Fact: All original thirteen colonies have ratified the constitution. Where this constitutional “urban legend” stems from is Rhode Island, which originally rejected the constitution but, in 1790, ratified it through popular referendum, considered a convention by legal standards of the day. States which have been admitted to the Union agree to recognize the constitution as the Supreme Law of the Land in accordance with Article VI, Section 2.  Some Texas history enthusiasts argue that Texas enjoys this privilege because Texas became a state through annexation.  This argument conveniently ignores the Joint Resolution of Congress admitting Texas to the Union on December 29, 1845, ten months after Congress approved the annexation agreement.  Constitutional law indicates that, by accepting the admission of statehood, Texas ceded all rights under the treaty of annexation because it accepted the Constitution as the Supreme Law of the Land.

and finally…

Fiction: The President can block the admission of any state into the Union.

Fact: The President has zero power to do anything with regards to the admission of any state. Article IV, Section 3 states “New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” While the President may request the admission of a state to the Union, the sole power of admission to the Union of any state lies in Congress through Joint Resolution. The last state to be admitted to the Union was Hawaii, on August 21, 1959. No President has ever been able to block statehood.

NOTE: The District of Columbia, being the seat of the federal government, has been a hot topic over the years regarding statehood. Some legal scholars have argued it can not, technically, become a state unless one of two things happen. The first option is a conventional one: a constitutional amendment allowing the entire district statehood which must be passed by ¾ of the states. The second option, which has recently been considered viable by some legal scholars, is for Congress to pass a law redefining the District to include only the immediate federal government buildings, such as the Congress, White House and National Mall, and to create a new territory between the current District boundary with Maryland the revised boundaries which could then apply for statehood. The thinking behind this is, the federal district would being devoid of all permanent residents, the constitutional argument against statehood would be rendered moot.

Hopefully this article was enlightening about things you may not have known.  I’m open to suggestions about other articles to write about.  Comment here or anywhere on my page!


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