Lost in Translation Posted October 8, 2018 (edited) I think a walk-through the US Constitution is in order. For this topic we'll use Cornell Law's website. https://www.law.cornell.edu/constitution Edited October 8, 2018 by Lost in Translation 5 Share this post Link to post Share on other sites
Lost in Translation Posted October 8, 2018 (edited) Preamble to the Constitution Quote We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. https://www.law.cornell.edu/constitution/preamble The preamble sets up the raison d'etre of the Constitution. It establishes the focus of the document. Notice the priorities: more perfect union, justice, domestic tranquility, common defense, general welfare, liberty. Edited October 8, 2018 by Lost in Translation 2 Share this post Link to post Share on other sites
Lost in Translation Posted October 8, 2018 (edited) Article 1 has ten sections. In order to keep this manageable we'll break them down one at a time. Article 1, section 1 Quote All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. https://www.law.cornell.edu/constitution/articlei#section1 The Constitution starts off pretty basic. Article 1, section 1 states that there shall be a Congress consisting of two houses, Senate and House of representatives, and that it shall be this body that is responsible to creating law. This in itself was a fairly novel concept, considering that many European countries had monarchies and law was to a large extent based upon the whim of the monarch. Edited October 9, 2018 by Lost in Translation 2 Share this post Link to post Share on other sites
ralis Posted October 8, 2018 In what way were persons/person defined in 1787? Without that understanding, then one falls into the Originalism/Textualism interpretation which is an error in reason. For such an enlghtened document, then why were women not given equal status with men? Moreover, many of the framers were slave owners. https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1558&context=lawineq Quote 1988 Th e C onstitutional Status of Women in 1787 Mary Beth Norton Follow this and additional works at: http://scholarship.law.umn.edu/lawineq Law & Inequality: A Journal of Th eory and Practice is published by the University of Minnesota Libraries Publishing. Recommended Citation Mary B. Norton, Th e Constitutional Status of Women in 1787, 6 Law & Ineq. 7 (1988). Available at: http://scholarship.law.umn.edu/lawineq/vol6/iss1/3The Constitutional Status of Women in 1787 Mary Beth Norton* I am tempted to make this presentation on the constitutional status of women in 1787 extremely brief. That is, I could accu- rately declare that "women had no status in the Constitution of 1787" and immediately sit down to listen to the comments of the rest of the panelists here this morning. However, I was undoubt- edly invited here to say more than that, and so I shall. If one looks closely at the words of the original Constitution, the term "man" or "men" is not used; rather, "person," "persons" and "people" are the words of choice. That would seem to imply that the Founding Fathers intended to include women in the scope of their docu- ment. That such an assumption is erroneous, however, was demonstrated in a famous exchange between Abigail and John Ad- ams in 1776. Although John Adams was not present at the Consti- tutional Convention, his attitudes toward women were certainly representative of the men of his generation. In March, 1776, when it had become apparent that indepen- dence would soon be declared, Abigail advised John, then serving in the Continental Congress in Philadelphia, that in the "new Code of Laws" that would have to be adopted he and his fellow legislators should "Remember the Ladies," for "all Men would be tyrants if they could."' What she sought was not legal equality or the vote but rather reform of the common law of marriage, which placed wives' property under their husbands' control and which made married women the legal wards of their spouses. 2 John treated his wife's plea with disdain, dismissing it with a jocular ref- erence to the current prevalence of rebelliousness among depen- dents like children and servants, which mimicked the larger * Mary Beth Norton (B.A. University of Michigan 1964, M.A., Ph.D. Harvard University 1965, 1969) is Mary Donlon Alger Professor of History at Cornell Uni- versity, where she has taught since 1971. 1. Letter from Abigail Adams to John Adams (Mar. 31, 1776), reprinted in The Book of Abigail and John 120-21 (Lyman Butterfield, Marc Friedlaender & Mary-Jo Kline ed. 1975). 2. See generally Marylynn Salmon, Women and the Law of Property in Early America (1986).Law and Inequality struggle against Great Britain. 3 Thus the first known request that protections for women be included in the nation's fundamental laws was rejected out of hand. There was, it might be argued, a good historical reason why John Adams and other revolutionary leaders, including those pres- ent at Philadelphia in 1787, failed to perceive women as a part of their polity. In their day, as in preceding centuries, the basic unit of society and economy was not the individual, as it is today, but rather the household.4 Each household had a male head, who con- trolled the household's property, directed its activities, fulfilled its obligations to the community through militia service or political participation, and was regarded by the law as the ruler of his own "little commonwealth," to use John Winthrop's words. 5 In this type of social organization, women were not the only dependents denied a voice in running their own affairs or those of the commu- nity-servants, sons who had not yet set up their own households, and slaves also had no vote and few responsibilities to the wider community. 6 Since married women and their daughters were le- gally subordinate to husbands and fathers and were perceived solely as parts of households, it is therefore hardly surprising that they were ignored by the drafters of the Constitution. And yet for two reasons such an explanation for the omission of women from the Constitution of 1787 is ultimately unsatisfac- tory. First, it rests on a socio-economic base rather than a politico- constitutional one. Second, it does not ask the most interesting question: why was government in the eighteenth century defined in such a way as to wholly exclude women? Dependent sons and male servants could, after all, acquire the status, privileges, and re- sponsibilities of household heads when or if they were able to es- tablish households of their own. Certain male ex-slaves also achieved such standing. But women, even those who as widows as- sumed economic control of their households, could never take on the political functions of the head of the household. Why? To an- swer this intriguing question I must first briefly review develop- ments in seventeenth-century political theory in England. Before the English Civil War, the context of family and 3. Letter from John Adams to Abigail Adams (Apr. 14, 1776), reprinted in The Book of Abigail and John, supra note 1, at 121-23. 4. Gordon Schochet, Patriarchalism in Political Thought 268 (1975). 5. Id. at 65-66. John Winthrop described the family as a "little common- wealth" in his address, A Declaration in Defense of an Order of Court Made in May, 1637, reprinted in Puritan Political Ideas 1558-1794, at 144, 146 (Edmund Mor- gan ed. 1965). 6. Schochet, supra note 4, at 65-72. [Vol. 6:71988] CONSTITUTIONAL STATUS OF WOMEN IN 1787 9 household provided the analogies that explained society and poli- tics to English people, including those who emigrated to the New World. As was true later, the dominant figure in the household was its male head, whom society, government, and religion alike deemed its proper ruler. It was to these paterfamilias that Stuart apologists like Sir Robert Filmer looked when they sought a source for claims of absolute monarchical power. By drawing an analogy between the king and the family patriarch, they hoped to buttress their theoretical position that the powers of the king were natural, absolute, and not open to question. 7 Even persons who did not support such all-encompassing assertions of kingly author- ity accepted the notion that the state and the family were analo- gous institutions-indeed, that the state had its theoretical and perhaps even historical origins in the husband and father's power over his wife, children, and other dependents. 8 That these ideas were carried to America by English settlers (especially the Puritans) becomes evident if one looks at John Winthrop's famous address on civil liberty in 1645.9 In that speech he drew parallels between the wife's role in marriage and the sub- ject's place in a state: The woman's own choice makes such a man her husband; yet being so chosen, he is her lord, and she is to be subject to him, yet in a way of liberty, not of bondage; and a true wife ac- counts her subjection her honor and freedom, and would not think her condition safe and free, but in her subjection to her husband's authority. Such is the liberty of the church under the authority of Christ, her king and husband .... Even so, brethren, it will be between you and your magistrates. 10 But while women's place in individual families was thus clear, their position in a society structured on the familial model was less so. Seventeenth-century England was characterized by a pervasive system of inequality in which each person had a distinctive place in a hierarchy based on age, wealth, and family standing." Yet that system was designed solely with respect to the status of adult men. Women and children, as dependents, were assumed to take the rank of their husbands and fathers. 12 The omission of gender from formal explications of the hierarchy thus made the status of women problematic. Superficially, the matter seemed simple: indi- 7. See id. at 99-114, 137-58. 8. Id. at 1-17. 9. Address by John Winthrop (May, 1645), reprinted in Puritan Political Ideas 1558-1794, supra note 5, at 136. 10. Id. at 139. 11. Keith Wrightson, English Society 1580-1680, at 17-23 (1982). 12. Id. at 21.Law and Inequality vidual women were always subject to individual men of their own rank. But high-status women took precedence over low-status men, since their husbands' rank was more important in determin- ing their social standing than was their gender. Furthermore, the formulation of female subjection worked well only when the women in question were filling the roles of wife or daughter, both of which were clearly subordinate to men. If the woman in question was a mother, determining her rank was considerably more complicated. The Fifth Commandment, which the English people universally cited as the fundamental source of all authority-governmental as well as familial-in their society, 13 read, "Honor Thy Father and Mother." Accordingly, women act- ing in a maternal capacity were nearly equal to men: they could command the same obedience from children, even adult male chil- dren, that their husbands could.14 A widow was even more anomalous, for she was the most likely of all females to own property. Under the common law, only unmarried women could control their own possessions. Never-married women seldom had much property, whereas wid- ows could inherit substantial holdings from their husbands. An in- dependent, property-holding widow confronted familial theory with a basic contradiction in terms because she did not fit the stan- dard definition laid down in 1632 in the first treatise on the legal status of women written in English: "All [women] are understood either married or to be married."15 If she was also a mother of high status, she would, on the one hand, rightly command the def- erence of her sons and low-ranking men, and on the other, be sub- ject to no man herself. Although a theory that saw family and state in the same terms explained women's position within particular households, it created serious difficulties when applied to their standing in soci- ety as a whole. On close examination, a formula that at first ap- peared comprehensive simply did not account for many aspects of women's rank, especially that of high-status widows. Indeed, it is striking how many high-status women posed problems for the au- thorities in England and, later, her American colonies. 16 There was, however, another way of conceptualizing the na- ture of polity and society, one that resolved the ambiguities of wo- 13. Schochet, supra note 4, at 6. 14. See id. at 7?6-84. 15. The Lawes Resolutions of Womens Rights: Or, The Lawes Provision for Women 6 (1632). 16. One example is Margaret Brent of Maryland. See Julia Cherry Spruill, Mis- tress Margaret Brent, Spinster, 29 Md. Hist. Mag. 259-68 (1934). [Vol. 6:719881 CONSTITUTIONAL STATUS OF WOMEN IN 1787 11 men's status by rendering females irrelevant outside the boundaries of the household, which perhaps gained male adher- ents for that very reason. That theory, which had originally been formulated in ancient Greece and achieved its fullest early expres- sion in the works of Aristotle, saw the family and the state not as analogous but as different, diametrically opposed institutions. The polis, composed only of men, was based on equality, while the fam- ily, composed of men and women, incorporated hierarchies of age, wealth, and gender. 17 Greek and-to a certain extent-Roman political theory drew a sharp line between the family and the state. Accordingly, the place of women within the family could be conceptually separated from the position of women in the polity and the wider society. In the latter context, women's rank was de- termined entirely by gender, all females being excluded from ac- tive participation in decisionmaking; in the former, their rank was dependent on a combination of age, gender, and wealth, and wo- men with high standing by those criteria could claim a share of family governance.' s In the sixteenth and seventeenth centuries, this older ap- proach once again attracted adherents. Perhaps English men found it congenial because it expressed in theoretical terms the re- ality of their political lives. In counties and villages throughout the nation, the era witnessed the development of strong local insti- tutions based on widespread male participation and government by a consensus of at least some property-owning male inhabitants.19 Still, the ideas remained inchoate until near the end of the seven- teenth century, when John Locke built a new theory on the notion that men had contracted with each other to form both society and polity. 20 Thus he combined ancient political concepts with custom- ary English practices to construct a comprehensive explanation for the origins of society that was to successfully challenge the then- dominant familial formula. He did so because as a supporter of the Protestant side in the Civil War and the Glorious Revolution of 1688-89 he needed to justify the overthrow of the absolutist Stuart monarchy and its replacement by a government more directly re- sponsive to the will of the people. 2 1 17. See Jean Bethke Elshtain, Public Man, Private Woman: Women in Social and Political Thought 45-54 (1981); Susan Moller Okin. Women in Western Political Thought 76-96 (1979); and Arlene Saxonhouse, Women in the History of Political Thought 20 (1985). 18. See Elshtain, supra note 17, at 46; and Saxonhouse, supra note 17, at 87-91. 19. Wrightson, supra note 11, at 35-36. Carl Bridenbaugh, Vexed and Troubled Englishmen 1590-1642, at 243-45 (1967). 20. See John Locke, Two Treatises of Government (Peter Laslett ed. 1960). 21. See Schochet, supra note 4, at 192-93.Law and Inequality What Locke did, in short, was to abandon the unified worldview that had characterized familial political theory. He in- stead divided the world conceptually into the all-male "public" realm of politics and government, in which equality was the norm, and the "private" realm of family life, in which hierarchy was retained.22 Women played a prominent role in the dialogue between sup- porters of the two theories. John Locke attacked Sir Robert Filmer, whose Patriarcha 23 presented the classic defense of the family analogy, for omitting mothers as wielders of familial power. How could Filmer, he asked, base a grant of absolute political au- thority on paternal power alone, when the Fifth Commandment linked mothers and fathers? 24 Yet Locke too was vulnerable with respect to the logic of his treatment of women. How could Locke, asked his opponents, presume that husbands and fathers repre- sented their wives and children when they consented to the estab- lishment of political and social authority? Did not the notion of consent require the participation of all free adults, even if not of all members of society?25 Locke dealt with that contention by stressing the inherent in- equality of women. The great philosopher, celebrated in his own day and ours as the man who attempted to remove "natural" con- straints from men and emphasized environmental influences over inherited disabilities, did not question wives' necessary subordina- tion to their husbands. Locke asserted that "the first Society was between Man and Wife," and that it was based on a "voluntary Compact," with "mutual Support, and Assistance." 26 But, he noted, although a husband and wife have "one common Concern," they have "different understandings," and so equality was not appropri- ate in a marriage. 27 He concluded that, even though the power of the husband was limited, "it therefore being necessary, that the last Determination, the Rule, should be placed somewhere, it natu- 22. Linda Nicholson, Gender and History: The Limits of Social Theory in the Age of the Family 133-66 (1986). 23. Sir Robert Filmer, Patriarcha and other political works (Peter Laslett ed. 1949). 24. Locke, supra note 20, at 321 (II, Chap. VI, § 52). 25. See The Sexism of Social and Political Theory: Women and Reproduction from Plato to Nietzche 16-40 (Lorenne Clark & Lynda Lange ed. 1979); Melissa Butler, Early Liberal Roots of Feminism: John Locke and the Attack on Patriarchy, 72 Am. Pol. Sct. Rev. 135 (1979); R.W.K. Hinton, Husbands, Fathers and Conquer- ors: 1, 15 Pol. Stud. 291 (1967); and R.W.K. Hinton, Husbands, Fathers and Conquer- ors: II, 16 Pol. Stud. 55 (1968). 26. Locke, supra note 20, at 337 (II, Chap. VII, §§ 77-78). 27. Id. at 339 (II, Chap. VII, § 82). [Vol. 6:71988] CONSTITUTIONAL STATUS OF WOMEN IN 1787 13 rally falls to the Man's share, as the abler and the stronger." 28 Accordingly, Locke, whose contract theory of government forms the foundation of our own Constitution and the English par- liamentary settlement of 1689, insisted that the public realm of equal rights and equal participation in government belonged prop- erly to men alone.29 Women's realm was inferior and private; the traditional family hierarchy thus remained intact. John Adams was therefore being a good Lockean when he quickly dismissed his wife Abigail's objections to the dependent status of married wo- men under the common law. To say that American men of the revolutionary generation subscribed to Locke's views on the proper role of women in a gov- ernment based on the contract theory is not, however, to say that their womenfolk agreed with them. Men may have wanted to deny women a place in the public realm, but just as Abigail Adams drew inspiration from revolutionary ideology, so too did other of her female compatriots. Indeed, when the women of New Jersey unexpectedly gained the opportunity to vote in the 1790s, they ex- ercised that right with enthusiasm and pleasure. 3 0 Examining their actions provides us with a chance to see the contemporary implementation of an alternative to strictly Lockean politics. New Jersey's little-known experiment with woman suffrage began when the members of the state constitutional convention in 1776 vaguely defined voters as "all free inhabitants" who met cer- tain property qualifications. Given the Lockean universe in which the men were operating, it is obvious that they so unquestioningly defined the political world as male that they simply forgot to in- sert a masculine modifier into the crucial suffrage clause. Their oversight allowed the women of New Jersey to seize the initiative, and so widows and never-married women who owned sufficient property successfully claimed the right to vote in the 1780s and 1790s. 3 1 One well-documented election in which women played a prominent role was the heated contest in 1797 over the legislative seat for the town of Elizabeth. Reportedly, seventy-five female Federalists appeared at the polls to vote against the Democratic- Republican candidate, John Condict. Although Condict won, Fed- eralist newspapers celebrated the women's activism. 32 One even 28. Id. 29. Id. at 341-48 (II, Chap. VII, §§ 87-94). 30. Mary Beth Norton, Liberty's Daughters: The Revolutionary Experience of American Women, 1750-1800, at 191 (1980). 31. Id. 32. Id. at 191-92.Law and Inequality published a poem, which read, in part: Let Democrats with senseless prate, maintain the softer Sex, Sir, Should ne'er with politics of State their gentle minds perplex Sir: Such vulgar prejudice we scorn; their sex is not objection .... While woman's bound, man can't be free, nor have a fair election. 33 Yet not all male New Jerseyites greeted woman suffrage with such exuberant glee. In his 1798 commentary on the state constitution William Griffith found it a "mockery," even "perfectly disgusting," to watch female voters casting their ballots. "It is evident, that women, generally, are neither, by nature, nor habit, nor education, nor by their necessary condition in society, fitted to perform this duty with credit to themselves, or advantage to the public," he as- serted.34 In 1807, relying on the persistence of such attitudes, John Condict took his revenge for his near-defeat by women ten years earlier: he introduced the bill that successfully disfranchised both women and property-owning free blacks, arguing that the votes of such persons were more likely to be corrupted than were those of independent white males. 35 What the New Jersey episode tells us is not merely that wo- men and men frequently differ in their assessments of what wo- men can and cannot-or should and should not-do. It also reveals that at the very inception of American government based on a Lockean model women objected to being excluded from the political community, seeking to end that exclusion and to take their places alongside their male counterparts through participat- ing in voting, if not yet in running for office. The broader context of Lockean thought explains why New Jersey's constitution-drafters omitted the word "male" from their document and indeed why the Founding Fathers used "person" rather than "man" in Philadelphia in 1787. To men of the late eighteenth century, the world of politics was so clearly exclusively male that masculine defining terms were unnecessary. It never even crossed their minds that women might want to be included in politics some day, or that "women's rights" might eventually be- 33. Centinel of Freedom (Newark, N.J.), Oct. 18, 1797, quoted in Norton, supra note 30, at 354 n.70. 34. William Griffith, Eumenes, Being a Collection of Papers 33 (1799); and Friend to the Ladies, True American (Trenton, N.J.), Oct. 18, 1802, quoted and cited in Norton, supra note 30, at 354 n.71. 35. E.R. Turner, Women's Suffrage, 1 Smith C. Stud. Hist. 181-85 (1916), cited in Norton, supra note 30, at 354 n.72. [Vol. 6:71988] CONSTITUTIONAL STATUS OF WOMEN IN 1787 15 come an issue. 36 What, then, do these gendered origins of the American polity imply for persons like yourselves, who are concerned with the en- forcement of federal law and the applicability of the Constitution today? First, they show us why it has been much more difficult for women than for blacks-half of whom, after all, are males-to be written into constitutional protections, whether via formal amend- ments or through Supreme Court decisions. The reluctance of the Supreme Court to apply standards of "strict scrutiny" to sex-based classifications rests ultimately on the fact that the Constitution not only omitted all explicit reference to women, it also was drafted as though they did not exist as political individuals-for indeed they did not in the minds of the Founding Fathers. Slaves and Indians at least received some mention in the text of the Constitution, brief though the references were; and those clauses-as subse- quently amended, in the case of blacks-later formed the basis for the expansion of the rights of minority groups. But women had to wait until the adoption of the nineteenth amendment in 1920 to be formally incorporated into the American political community. Ironically, though, the use of the word "male" in certain clauses of the fourteenth amendment alerts us to the fact that as early as the mid-nineteenth century the inclusion of women in politics was no longer unthinkable. Second, this analysis of the gendered assumptions of the men of the revolutionary generation raises directly and unavoidably the issue of the relationship of the "original intent" of the Founding Fathers to the United States we live in two hundred years later. Should we allow the political definitions and assumptions of not just the eighteenth, but the seventeenth century, with all their ob- vious anachronistic shortcomings and status-laden implications, to determine our Constitutional interpretations today? As a historian and a feminist, I think the answer to that question is no, but you will all have to reach your own conclusions on that point. 36. I have discussed this point in greater depth in Freedom of Expression as a Gendered Phenomenon, in The Constitution, The Law, and Freedom of Expression 1787-1987, at 42-64 (James Stewart ed. 1988). Share this post Link to post Share on other sites
Lost in Translation Posted October 8, 2018 4 minutes ago, ralis said: In what way were persons/person defined in 1787? Thank you for showing interest in this thread. We'll get to this in Article 1, section 2. 1 Share this post Link to post Share on other sites
Lost in Translation Posted October 9, 2018 Article 1, Section 2 Quote The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature. No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative; and until such enumeration shall be made, the state of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three. When vacancies happen in the Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies. The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment. https://www.law.cornell.edu/constitution/articlei#section2 Article 1, section 2 lists the basic requirements to serve as a member of the House of Representatives. It describes the minimum age (25 years), duration of citizenship (7 years), and residency requirements. It also describes the term of service (2 years) and lists the protocol to appoint a representative who vacates their seat in mid session. In addition, Article 1, section 2 also dictates that the states shall take a census every ten years and lists the manner in which representation shall be apportioned based upon the census. The manner is not by wealth (owning land), or by position (title) but by population among the states. Quote Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons. The calculus here has been a source of confusion since the text does not specifically mention whether a "person" applies to both men and women. It does explicitly mention that those indentured (bound to service) are to be included, but non-citizens (in this case Native American Indians) are not. This makes sense in that indentured are expected to become citizens when their term of bondage expires while Indians were not citizens. Regarding the three fifths clause: this was a compromise among the northern (free) states and the southern (slave) states. The northern states did not want to count slaves for the purpose of representation, since slaves were not free to vote. The southern states wanted to count slaves equal to free men for the purposes of representation since slaves accounted for approximately 30% of the southern states' population doing so would grant southern states a much larger influence in Congress. Eventually the northern states and the southern states compromised on three fifths, less than the south wanted and more than the north wanted, but necessary in order to ratify the Constitution. http://www.government-and-constitution.org/us-constitution/three-fifths-compromise.htm 1 Share this post Link to post Share on other sites
Lost in Translation Posted October 9, 2018 Article 1, section 3 Quote The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and the third class at the expiration of the sixth year, so that one third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the legislature of any state, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies. No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States and who shall not, when elected, be an inhabitant of that state for which he shall be chosen. The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. https://www.law.cornell.edu/constitution/articlei#section3 Article 1, section 3 describes the structure of the Senate, including the minimum requirements on age (30 years old), citizenship (9 years) and residency. Whereas members of the House of Representative are selected in proportion to the population, Senators are selected two per state. And whereas members of the House serve for two years, Senators serve for six - with 1/3rd up for reelection every two years. This article goes on to describe the basic rules of the Senate, most notably the rules of impeachment. Quote The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. I have highlighted the sections pertaining to impeachment, above. An impeachment requires a 2/3rd vote of sitting members (typically 67 votes with 50 states - assuming all senators are present). This is a necessarily huge hurdle. Impeachments are quite serious and are supposed to be difficult, and are thus reserved for only the most heinous crimes. The impeachment itself is not a punishment, but does open the door for the person impeached to subsequently be pursued according to the regular judicial process. 2 Share this post Link to post Share on other sites
Lost in Translation Posted October 9, 2018 Regarding impeachment, it's important to note that the House of Representatives is solely responsible for charging a sitting president with impeachment but the Senate is responsible to trying him. Article 1, section 2 Quote The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment. Article 1, section 3 Quote The Senate shall have the sole power to try all impeachments. This is actually a brilliant design. It is a check on the power of Congress. One portion of Congress can initiate impeachment while the other portion can implement it. This system of internal checks and balances is built into the US government, with one portion checking (or impeding) the power of the others, as we'll come to see as we continue through the document. 2 Share this post Link to post Share on other sites
Lost in Translation Posted October 9, 2018 Article 1, section 4 Quote The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. https://www.law.cornell.edu/constitution/articlei#section4 What is there really to say here? Each state may chose how they select their representatives. The Congress may alter the manner in which the states select representatives, but the Congress may not alter the place of choosing senators. Lastly Congress must assemble at least once a year. As you can see, the framers did not intend Congress to be a full-time occupation, or at least they did not intent for Congress to sit in session full time. 1 Share this post Link to post Share on other sites
Lost in Translation Posted October 9, 2018 Article 1, section 5 Quote Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy; and the yeas and nays of the members of either House on any question shall, at the desire of one fifth of those present, be entered on the journal. Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. https://www.law.cornell.edu/constitution/articlei#section5 Boilerplate stuff here. Each house shall manage its own operations, and neither house can just up and go home without the approval of the other house. Each house must keep a log or proceedings. 1 Share this post Link to post Share on other sites
Lost in Translation Posted October 9, 2018 Article 1, section 6 Quote The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office. https://www.law.cornell.edu/constitution/articlei#section6 Members of Congress receive payment for services from the treasury of the United States. Excepting treason, felony, and danger to the public they are immune to arrest while performing their duties. That's a nice deal there. Also members of Congress can't double-dip on their duties - can't hold two offices at the same time, for example governor and senator. Share this post Link to post Share on other sites
Lost in Translation Posted October 9, 2018 Article 1, section 7 Quote All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills. Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. https://www.law.cornell.edu/constitution/articlei#section7 Now we're getting into the meaty parts of Congress! Article 1, section 7 covers the process by which Congress approves legislation. Only the House of Representatives can initiate any revenue raising bill. Either the House or the Senate can initiate other bills. Bills (legislation) must pass both houses of Congress before they can be submitted to the President and signed into law. The President can sign a bill into law, veto (reject) it, or ignore it. If he ignores it then after ten days it automatically becomes law, unless the Congress is no longer in session, in which case it automatically is rejected. If the President rejects a bill then he can add comments as to why. The Congress then has the option to discuss the bill, modify it if desired, then re-vote on it. If they re-vote with a 2/3rd majority in both houses then they can override a Presidential veto and the bill becomes law. This is yet another example of the checks and balances in the US government. Congress creates legislation but needs the President to sign it into law - but even if the President refuses to sign it the bill can still become law if there is overwhelming support for it in Congress. I'll pause here and give people a chance to comment if they want. We'll pick this thread up tomorrow with section 8. 2 Share this post Link to post Share on other sites
windwalker Posted October 10, 2018 11 hours ago, Lost in Translation said: If the President rejects a bill then he can add comments as to why. The Congress then has the option to discuss the bill, modify it if desired, then re-vote on it. If they re-vote with a 2/3rd majority in both houses then they can override a Presidential veto and the bill becomes law. This is yet another example of the checks and balances in the US government. Congress creates legislation but needs the President to sign it into law - but even if the President refuses to sign it the bill can still become law if there is overwhelming support for it in Congress. In your opinion whats happening now that is different from what is outlined. 1 Share this post Link to post Share on other sites
Lost in Translation Posted October 10, 2018 4 hours ago, windwalker said: In your opinion whats happening now that is different from what is outlined. Are you referring to judicial activism? Judicial Activism refers to rulings that are based on personal sentiments rather than legal precedent. The term is often used as an antonym of Judicial Restraint. https://en.wikipedia.org/wiki/Judicial_activism https://en.wikipedia.org/wiki/Judicial_restraint In a nutshell, judicial activists use their positions as judge to reinterpret existing statutes in such a manner as to create new law where none had previously existed, thus bypassing the entire legislative process. There are many examples of judicial activism. The most recent example that comes to my mind is Obergefell v. Hodges, the case that in 2014 declared marriage as no longer a union between one man and one woman, but a union among any two people. https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf Here is a portion of the dissenting opinion of Chief Justice Roberts from that case: Quote Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex. But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered). Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition (bold added by me) Let me add that this is not a new phenomenon. Judges are human, too, and have been using their positions to reinterpret law and thus expand or contract its meaning for many years. That said, it's vital that judges refrain as best they can from judicial activism since it short circuits the entire legislative process and turns the court system into a form of "super legislature". 2 Share this post Link to post Share on other sites
Lost in Translation Posted October 10, 2018 (edited) Article 1, section 8 Quote The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; To borrow money on the credit of the United States; To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; To provide for the punishment of counterfeiting the securities and current coin of the United States; To establish post offices and post roads; To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; To constitute tribunals inferior to the Supreme Court; To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. https://www.law.cornell.edu/constitution/articlei#section8 Article 1, section 8 lists the powers expressly granted to Congress. Edited October 10, 2018 by Lost in Translation formatting 1 Share this post Link to post Share on other sites
Lost in Translation Posted October 10, 2018 Article 1, section 9 Quote The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. No bill of attainder or ex post facto Law shall be passed. No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken. No tax or duty shall be laid on articles exported from any state. No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or pay duties in another. No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time. No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. https://www.law.cornell.edu/constitution/articlei#section9 Whereas Article 1, section 8 describes those authorities explicitly granted to Congress, Article 1, section 9 describes the areas specifically prohibited to Congress. In other words, these are the items that Congress must not do. I find the following prohibition especially relevant: Quote No bill of attainder or ex post facto Law shall be passed. A "bill of attainder" is an act declaring that someone is guilty of a crime, typically issued without a trial. An "ex post facto law" is a law that retroactively makes something that was previously not illegal to be illegal. Why are these important? Well, to declare someone guilty without a trial (without the opportunity of defense) is a supreme act of injustice, and to declare an action illegal retroactively is to punish a person for a non-crime. All reasonable people must agree that this is wrong. Yet look what we are doing even now: we are applying our modern sensibilities - indeed our modern sense of justice - retroactively against the founders of the United States and finding them ex post facto guilty! This is one of the reasons that I am working through the Constitution like this. It's important to understand how the US was founded and what ideals are at its core lest we lose those ideals in our rush to suicide brought on by our self-hatred. https://en.wikipedia.org/wiki/Bill_of_attainder https://en.wikipedia.org/wiki/Ex_post_facto_law Share this post Link to post Share on other sites
windwalker Posted October 10, 2018 8 hours ago, Lost in Translation said: Are you referring to judicial activism? Yes, and thank you for an interesting thread I hope to learn a lot in comparing viewpoints. Your recent posting on marriage is very pertinent and explains a lot of the confusion that is going on now. 1 Share this post Link to post Share on other sites
Lost in Translation Posted October 11, 2018 (edited) Article 1, section 10 Quote No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing it's inspection laws: and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. https://www.law.cornell.edu/constitution/articlei#section10 Section 10 is the final section in Article 1. This describes the limitations placed on the individual states. This basically states that individual states can't behave like independent countries (e.g. no treaties, alliances, separate currencies, etc.). It also says that states can't levy duties or fines on any kind of commercial or military ships without the approval of congress and that states can't wage war with other countries or with each other. This concludes Article 1, the Congress. Article 2 describes the Presidency. We'll take a break for a couple days then move on to that. Edited October 11, 2018 by Lost in Translation 1 Share this post Link to post Share on other sites
windwalker Posted October 12, 2018 (edited) Was going to post on the trump thread but felt it might bring more interest here. Quote Alexander Hamilton famously argued “that the judiciary is beyond comparison the weakest of the three departments of power” and that “the general liberty of the people can never be endangered from” the judicial branch. But Hamilton qualified that claim. He said it would only be true as long as “the judiciary remains truly distinct from both the legislature and the Executive.” Hamilton agreed with the French political philosopher Montesquieu, who warned that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” The judges themselves are part of the problem, what is being corrected now...as they are being replaced. The Judicial branch was designed to be the weakest of the 3 branches. Edited October 12, 2018 by windwalker 1 1 Share this post Link to post Share on other sites
windwalker Posted October 12, 2018 Can anyone present an argument as to why this is even an issue. Quote The move to quiz U.S. residents on their citizenship status is a controversial one, dividing Washington along partisan lines. The Supreme Court will ultimately decide whether the question will appear on the census. The citizenship question is controversial because House seats are apportioned by population, which includes everyone counted by the census. But critics say it would reduce the response rates by illegal immigrants who fear their information could be used to deport them. McCaskill herself criticized the proposal, calling it “blatantly political” and demanding a Senate panel hearing on the issue. https://www.foxnews.com/politics/mccaskill-beholden-to-national-dems-not-constituents-on-census-citizenship-question-gops-hawley-says Quote But critics say it would reduce the response rates by illegal immigrants who fear their information could be used to deport them. They shouldn't be deported? This is what happens when those responsible for enforcing the law selective do so. Share this post Link to post Share on other sites
Marblehead Posted October 12, 2018 Laws must be enforced. When they are not it only shows the weakness of a society's government. If it is an unenforceable law then it should be removed from the books. It is the Supreme Court's responsibility to determine the validity of a law. They should never be allowed to make laws. 1 1 Share this post Link to post Share on other sites
Stosh Posted October 12, 2018 1 hour ago, Marblehead said: Laws must be enforced. When they are not it only shows the weakness of a society's government. If it is an unenforceable law then it should be removed from the books. It is the Supreme Court's responsibility to determine the validity of a law. They should never be allowed to make laws. As an anarchist , shouldn't you be of a mind that no one should be allowed to make laws? 1 Share this post Link to post Share on other sites
Marblehead Posted October 12, 2018 2 hours ago, Stosh said: As an anarchist , shouldn't you be of a mind that no one should be allowed to make laws? Valid question. I am of the same view as Chuang Tzu. We prefer there were no need for laws. That is, everyone would do the right thing. We know that ain't gonna happen. There are many who would do whatever they want, regardless of who it hurts, if they think they can get away with it. Therefore the need for laws. I consider myself a realistic Anarchist just as I consider myself a realistic optimist. We know how thing could be but we also know that there will always be those who are willing to violate the rights of others. But I can still live my personal life as both an Anarchist and an optimist. But I must never close my eyes to reality. 3 Share this post Link to post Share on other sites
ilumairen Posted October 12, 2018 (edited) On 10/9/2018 at 5:45 PM, Lost in Translation said: Article 1, section 6 https://www.law.cornell.edu/constitution/articlei#section6 Members of Congress receive payment for services from the treasury of the United States. Excepting treason, felony, and danger to the public they are immune to arrest while performing their duties. That's a nice deal there. Also members of Congress can't double-dip on their duties - can't hold two offices at the same time, for example governor and senator. What constitutes breach of the peace? And would calls to violence be punishable according to the constitution? Edited October 12, 2018 by ilumairen 3 1 Share this post Link to post Share on other sites
Pilgrim Posted October 12, 2018 (edited) 3 hours ago, Marblehead said: Valid question. I am of the same view as Chuang Tzu. We prefer there were no need for laws. That is, everyone would do the right thing. We know that ain't gonna happen. There are many who would do whatever they want, regardless of who it hurts, if they think they can get away with it. Therefore the need for laws. I consider myself a realistic Anarchist just as I consider myself a realistic optimist. We know how thing could be but we also know that there will always be those who are willing to violate the rights of others. But I can still live my personal life as both an Anarchist and an optimist. But I must never close my eyes to reality. Thats why in the old days everyone carried a 6 shooter on both hips Pardner, ya done wrong ya got shot! Proof most did right is that people are still here. One of my coworkers got held up in a convenience store this week, only one with a gun was the asshole holding people up... So much for law protecting people. Edited October 12, 2018 by Pilgrim 1 Share this post Link to post Share on other sites
