These days, pundits, candidates, and party activists like to cite the Constitution of the United States as the moral and legal backing for whatever they’re proposing.
But the Constitution is silent on a lot of things you probably thought it said. Here are eight examples.
The President can veto a proposed amendment to the Constitution.
No. He has nothing to do with the amendments. Congress can propose an amendment with a two-thirds vote of both houses, or a Constitutional Convention can be called by a vote of two-thirds of the state legislatures. However, once the amendment is proposed either by Congress or a convention, it must be ratified by three-fourths of the state legislatures.
Only one amendment, the 21st Amendment, which repealed Prohibition (the 18th Amendment), was ratified by conventions in the states.
The “Founding Fathers” who wrote the Declaration of Independence in 1776 are the same men who wrote the Constitution in 1787.
Only five individuals signed both of these two founding documents. They were George Clymer, Benjamin Franklin, Robert Morris, George Read, and Roger Sherman. Some of the famous signers of the Declaration were elsewhere when the Constitution was being written. Thomas Jefferson was in France as our American minister, and John Adams was American minister to Great Britain.
The Constitution established the system of Federal courts.
No. The Constitution established “one supreme Court” and left it to Congress to establish lower courts.
The Constitution gave the Supreme Court the power to declare laws unconstitutional.
No. The Constitution makes no mention of judicial review, which is common in our legal system now. Judicial review goes back to English common law and was affirmed during the 34-year tenure of Chief Justice John Marshall in the landmark case Marbury v. Madison in 1803. Today, Federal courts at all levels can declare laws unconstitutional, although the Supreme Court has the final word.
The Constitution sets the number of seats in the House of Representatives at 435.
No. The Constitution gives this power to the Congress, which has increased the number of House members as the nation’s population has increased. The limit of 435 members was set in 1911. It temporarily exceeded that number for a few years when new states were admitted to the Union, but reverted back to 435 after the next reapportionment. The original proposed Bill of Rights included an amendment that would have set a maximum of one representative for every 50,000 persons. Had it been approved, we would have a very large number of House members today. The Constitution did say that each state would have two senators in the Senate, regardless of the state’s population.
The House must choose one of its own members as Speaker, and the Senate must choose one of its own as President pro-tempore.
No. The Constitution says only that the “House shall chuse their speaker.” The Speaker, third in line to the Presidency, has always been a member of the House. The Constitution also says, “The Senate shall chuse. . . .a President pro tempore. . . .” The President pro tempore has always been a senior senator.
The Constitution says “all men are created equal.”
No. The Declaration of Independence says that. The Constitution skirts the issue of slavery, counting each slave as three-fifths of a person in determining representation in Congress. While this definition offends us today, it was an attempt to limit the power of states with large numbers of enslaved people. Otherwise, the enslaved people, who of course could not vote, would have been used to justify larger numbers of representatives for slave states and give them more power in Congress.
The Constitution created the United States as a democracy.
No. Someone asked Benjamin Franklin whether the delegates to the Constitutional Convention inside Independence Hall in Philadelphia had created a monarchy or a republic. “A republic, if you can keep it,” Franklin replied. The difference: In a democracy, the majority rules, but a republic has a government by the people with checks and balances and a constitution for all to adhere to. Article 4, section 4, states: “The United States shall guarantee to every State in this Union a Republican Form of Government.”