Two hundred and twenty-five years ago today, the Founding Fathers formally signed the Constitution, launching the grand experiment that would become the foundation of the American republic and the government we know today. So it is with greater legal nerd giddiness that I can formally wish you a happy Constitution Day!
Now, if you didn’t know today was Constitution Day, don’t worry, you weren’t alone. Although an official federal holiday, Constitution Day, much like the actual language of the Constitution, is often forgotten and glossed over.
So today, in honor of Constitution Day, allow me to present nine lesser known factoids about what our Constitution does and does not cover.
1. The Constitution Prohibits a Democratic Form of Government
That’s right, democracy is actually unconstitutional within the great American democracy. In fact, the word “democracy” is never even mentioned in the Constitution. Technically speaking, the United States of America is a federal representative democratic republic, not a democracy. What’s more, although the States are allowed a fair deal of flexibility in how they conduct their affairs, changing their form of government is explicitly prohibited.
Article 4, Section 4 of the Constitution contains the “Guarantee Clause,” which states that “the United States shall guarantee to every State in this Union a Republican Form of Government.” No, this doesn’t mean that Mitt Romney is automatically president (get it ... Republican Form of Government), rather it means that the federal government shall ensure that all state governments function on the basis of electing individuals to represent constituents in a deliberative manner.
Any other form of government, be it a direct democracy or a tyrannical dictatorship, are forbidden and the federal government has the power to prevent alternative forms of government from taking shape.
2. Congress Can Make Up Their Own Rules Whenever They Want
If it seems Congress plays by a different set of rules than the rest of us, it’s because they’re allowed to. Article I, Section 5 explicitly states that “Each House may determine the Rules of its Proceedings,” meaning, basically, that the House and Senate get to make their own rules and change them at will. Yes, this even means they get to make up rules about changing the rules. Think Calvinball, but in the Senate.
3. Judicial Review of Laws is Not in the Constitution
If you ever wondered why the Supreme Court gets to tell Congress when a law is or is not constitutional, you won’t find the answer in the actual Constitution.
The concept of judicial review, which gives the judiciary final say when reviewing and interpreting laws to determine their constitutionality, is a legal concept adopted by the Supreme Court in the 1803 case of Marbury v. Madison.
Basically, the Supreme Court said “in order for us to answer this question, we need the power of judicial review, therefore, because we plan to answer this question, we’re going to go ahead and give ourselves the power of judicial review.”
If you look up the definition of “judicial activism” or “circular reasoning,” you’ll find a citation to this case and a big picture of then Chief Justice John Marshall blowing the other two branches a raspberry.
4. Congressional Votes Don’t Have to Be Public
As scary as the idea may be, your Senators and Representatives are actually doing you a voluntary favor by making their Yay and Nay votes public. Article I, Section 5 only requires that a vote be made public if 1/5th of those present for the vote ask for it.
While legally this means that Congress could take controversial votes (or all of their votes) in secret, public outcry makes such a move politically infeasible, despite being perfectly constitutional.
5. The Constitution Gives You the Right to Sue On Behalf Of the Government – And Get Paid!
Before you all run off to law school, let me clarify that you can’t sue for everything. Qui tam relators, are attorneys who support the government by bringing suit in specific areas where the government may not have the resources to pursue litigation.
Under the U.S. Code, private citizens can bring suit for things such as violation of Indian protection laws, the arming of sea vessels against friendly nations, and to act as whistleblowers for corporate violations of federal law. Under qui tam provisions, attorneys who sue as qui tam relators can take home part or sometimes all of a monetary penalty imposed on the losing party by the court, thereby encouraging more efficient enforcement of federal laws.
6. You Can’t Cut or Raise the Salary of a Member of Congress During Their Term of Office
Ah, the 27th Amendment, everyone’s favorite amendment. What? What do you mean you haven’t heard of the 27th Amendment? Well, you should read it. Put simply, the Amendment makes it so that Congress can’t just spend its free time voting for pay raises for themselves. While congressional salaries can obviously be adjusted, there must be an election before a member of Congress begins to collect the newly adjusted paycheck, theoretically giving constituents a chance to boot them if they disagree with the pay-raise or pay-cut.
7. The Government Doesn’t Require a Warrant to Search You or Your Belongings
Let me stop you right there. Yes, the Fourth Amendment requires that a government obtain a warrant before it searches a person or their property or belongings. However, the modern Fourth Amendment has enough legal holes in it to rival swiss cheese.
The government can bypass the warrant requirement if:
- the government believes that it needs to search you to protect the safety of a law enforcement officer (the ever popular, stop and frisk)
- the government believes there to be “exigent circumstances” justifying an immediate search
- the government has lawfully arrested you
- you’re in a car at the time you are stopped
- the police have to chase you
- the government thinks it’s an emergency situation
The list goes on and on with new interpretations of the exceptions being added annually. From the invention of “no-knock” warrants to the ability to get warrants after-the-fact, the warrant requirement of the Fourth Amendment is hardly as demanding as it would appear at first read.
8. You Can Be Prosecuted Multiple Times For the Same Crime
But the Fifth Amendment prohibits that! What about double jeopardy? I’ve seen Law and Order, this is unconstitutional! I hear you and trust me, I was just as surprised that Hollywood lied to me as you all are.
The “double jeopardy” clause of the Fifth Amendment does protect you from being sued for the same crime, but only if you are being sued by the same state entity or sovereign. Other sovereigns, such as other states or the federal government, are not prohibited from bringing suit. Put another way, a state can’t sue you twice for the same crime, but two different states can sue you for the same crime.
For example, if you stand in North Carolina and shoot and kill someone across the border in South Carolina, both North Carolina and South Carolina can bring murder charges against you. Moreover, if you happened to violate a federal law in the process, the federal government can sue you too.
9. The First Amendment Doesn’t Protect All Speech
I’m sure you’ve heard that you can’t yell fire at a theatre but did you know that you might not even be able to stage political protests on a college campus?
Although broad, the First Amendment is limited in several ways. First, it only protects you from the government, not from private actors. This means that if a private school or a private employer bans certain forms of speech, they are generally within their rights to do so.
Second, not all speech is considered “protected speech.” Certain kinds of speech, such as obscenity, fighting words, libel, and slander are considered unprotected by the First Amendment and the government is given far great leeway in limited or restricting such speech.
10. There Are Pirates in the Constitution
Although it took more than a century and a civil war to actually give all American citizens the right to vote and participate in government, the regulation of pirates was mentioned in the Constitution on day one.
Article 1, Section 8, which sets forth the “enumerated powers of Congress” gives the federal government express authority “to define and punish Piracies … on the high Seas.” The reason for piracy’s inclusion in the Constitution was a nod to the major role that the Barbary Pirates played in international and American politics at the time.
Although anachronistic today, the Constitution’s authors wanted to clearly reserve the power to deal with pirates to the federal government so as to prevent the states from causing political problems while centralizing the protection of merchant trade vessels within the federal government.
11. “Separation of Church and State” is Not Actually in the Constitution
Oft-cited by opponents of religious encroachment into the political sphere, “the separation of church and state” is language that appears in Thomas Jefferson’s letters, not the Constitution.
The First Amendment, which protects the establishment and free exercise of religion, does create a legal separation, but only in a single direction. The First Amendment prohibits the government from making laws that would help or hinder any particular religion. In that sense, there is a separation between Church and State.
However, there is nothing in the Constitution that prohibits religious individuals from passing religiously inspired laws in the United States, so long as they don’t infringe on any other religion’s free exercise or establishment. This means that laws on abortion or gay marriage that are introduced or passed based on religious ideals are perfectly constitutional.
In fact, prohibiting passage of laws based on religious ideology would almost certainly violate both the free exercise and establishment clauses of the First Amendment, because it would effectively discriminate against religion, something expressly prohibited in the Constitution.