Things That Are Not in the US Constitution

 

Things That Are Not in the US Constitution

A lot of people presume a lot of things about the Constitution. Some are true, some are not. This page will detail some of the things that people think are in the Constitution, but are not.

Innocent until proven guilty

The concept of the presumption of innocence is one of the most basic in our system of justice. However, in so many words, it is not codified in the text of the Constitution. This basic right comes to us, like many things, from English jurisprudence, and has been a part of that system for so long, that it is considered common law. The concept is embodied in several provisions of the Constitution, however, such as the right to remain silent and the right to a jury.

The right to privacy

The Constitution does not specifically mention a right to privacy. However, Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. The right to privacy has come to the public’s attention via several controversial Supreme Court rulings, including several dealing with contraception (the Griswold and Eisenstadt cases), interracial marriage (the Loving case), and abortion (the infamous Roe v Wade case). In addition, it is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd, the 4th’s search and seizure limits, and the 5th’s self-incrimination limit.

The separation of church and state

The phrase "separation of church and state" does not appear anywhere in the Constitution. Thomas Jefferson wrote that the 1st Amendment erected a "wall of separation" between the church and the state (James Madison said it "drew a line," but it is Jefferson’s term that sticks with us today). The phrase is commonly thought to mean that the government should not establish, support, or otherwise involve itself in any religion, though it is more accurate to say that the 1st Amendment prohibits the government from establishing a national religion, and protects the individual’s right to worship, or not worship, however the individual sees fit.

Impeachment means removal from office

The word "impeachment" and the phrase "removal from office" are not synonymous. For a President, judge, or other federal official to be removed from office against their will (because resignation is always an option), they must be impeached. Impeachment consists of three phases - the passage of the impeachment by the House, a trial by the Senate, and the imposition of a penalty if the Senate convicts. For members of the executive branch, removal from office is automatic upon conviction. The Senate may also decide to prevent the person from holding any other public office (see Article 2, Section 4). For any other impeachable officer (including judges), there are basically two punishments, which gives them four options: they can do nothing; they can remove the person from their office; they can prevent the person from ever holding any office in the federal government again, or both (see Article 1, Section 3).

Executive Privilege

Nixon asserted that the Constitution granted him the absolute right of executive privilege, or the ability to withhold information from the press, the public, the Congress, and even the courts. The Supreme Court disagreed, though it did recognize a limited degree of privilege. Those limits have to do with military or diplomatic secrets - but even then, the information in question could be reviewed for relevancy. (See 418 US 683 (1974)) Some argue that executive privilege is a myth; it certainly is not codified in the Constitution. The truth is likely that though there is no specific mention of privilege in the Constitution, the Framers would have been comfortable with the definition the Court has set down.

Life, Liberty, and the Pursuit of Happiness

This phrase is commonly attributed to the Constitution, but it comes from the Declaration of Independence.

The Right to Vote

The Constitution contains many phrases, clauses, and amendments detailing ways people cannot be denied the right to vote. You cannot deny the right to vote because of race or sex. Citizens of Washington DC can vote for President; 18-year-olds can vote; you can vote even if you fail to pay a poll tax. The Constitution also requires that anyone who can vote for the "most numerous branch" of their state legislature can vote for House members and Senate members. Note that in all of this, though, the Constitution never explicitly ensures the right to vote, as it does the right to speech, for example. This is precisely why so many amendments have been needed over time - the qualifications for voters are left to the states. And as long as the qualifications do not conflict with anything in the Constitution, that right can be withheld. For example, in Texas, persons declared mentally incompetent and felons currently in prison or on probation are denied the right to vote.

Judicial Review

We often hear about the Supreme Court striking down a law or a provision in a law, or, more often, reaffirming some law or provision. Take a look in the Constitution - judicial review, as this is known, is nowhere to be found. It seems like a perfectly normal action - after all, what kind of check does the Judicial Branch have on the other two branches if laws and orders cannot be declared unconstitutional. But judicial review is not specifically mentioned. So how did judicial review come to be? In the landmark case of Marbury v Madison (1803), Chief Justice John Marshall declared a federal law, the Judiciary Act of 1789, to be unconstitutional, and thus null and void. This was the first time a Supreme Court ruling overturned a law.

Political Parties

Political parties are such a basic part of our political system today, that many people might assume the Constitution must at least mention parties in one way or another... but there is absolutely no mention of political parties anywhere in the Constitution. In fact, in the times of the Articles of Confederation, there weren’t even any parties; factions, perhaps; regional blocs, yes; but no parties. Not until the Jackson and Van Buren administrations did organized parties really take hold in the American political system.

Congressional Districts

Congressional Districts divide almost every state in the United States into two or more chunks; each district should be roughly equal throughout the entire country. Each district elects one Representative to the House of Representatives. The number of districts in each state is determined by the decennial census, as mandated by the Constitution. But districts are not mentioned in the Constitution. The United States Code acknowledges districting, but leaves the "how’s" to the states (gerrymandering, however, is unconstitutional [as seen in Davis v Bandemer, 478 US 109, though, the intent of gerrymandering is difficult to prove]).

The Right to Travel

As the Supreme Court notes in Saenz v Roe, the Constitution does not contain the word "travel" in any context, let alone an explicit right to travel. The presumed right to travel, however, is firmly established in US law and precedent. In US v Guest, the Court noted, "It is a right that has been firmly established and repeatedly recognized." In fact, in Shapiro v Thomson, Justice Stewart noted in a concurring opinion that

"it is a right broadly assertable against private interference as well as governmental action. Like the right of association, ... it is a virtually unconditional personal right, guaranteed by the Constitution to us all."

It is interesting to note that the Articles of Confederation had an explicit right to travel; it is now thought that the right is so fundamental that the Framers may have thought it unnecessary to include it in the Constitution or the Bill of Rights.

Executive Orders

Executive Orders have two main functions: to modify how an executive branch department or agency does its job (rule change) or to modify existing law, if such authority has been granted to the President by Congress. Executive orders are not mentioned by the Constitution, but they have been around a long, long time. George Washington issued several Presidential Proclamations, which are similar to EO’s (Proclamations are still issued today). EO’s and Proclamations are not law, but they have the effect of statutes. A typical modern Proclamation might declare a day to be in someone’s honor. Historically, they have had broader effect, such as the Emancipation Proclamation. A typical EO might instruct the government to do no business with a country we are at war with. Executive orders are subject to judicial review, and can be declared unconstitutional. Today, EO’s and Proclamations are sequentially numbered. The average president issues 58 EO’s a year. As of March 13, 1936, all EO’s must be published in the Federal Register. The first to have been so published was #7316, by President Roosevelt.

Number of Justices in the Supreme Court

Article 4 specifies that there will be a Supreme Court, Article 1, Section 3 alludes to the Chief Justice, and Article 2, Section 2 alludes to the "Judges of the Supreme Court", but aside from these small mentions, the make-up of the Supreme Court is not defined in the Constitution. There will be a Supreme Court, there will be a Chief Justice, and there will be other Justices - but how many? Originally, there were six members, and the number has fluctuated up to as many as ten. In 1869, the number was set in the law at nine, and it has remained at nine ever since. The number of justices is now set in the US Code at 28 USC 1.