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It’s in the Constitution

Sunday, July 6, 2008
(Updated 3:00 am)

This Fourth of July weekend gives us the chance to celebrate America's birth and to remember the stirring words of the Declaration of Independence. But it is the Constitution under which we live. Here are 10 things about it that you may not know:

1. The entire Constitution applies only to government.

That means students at a private university have no First Amendment right to peacefully demonstrate on campus, while students at a public college have such protection. If you work in the private sector, you cannot wear a button supporting a candidate while on the job if your employer objects.

2. From 1791, when the Bill of Rights was ratified, until the 20th century, those amendments restrained only the federal government.

Any state could abridge those fundamental rights. For example, in Palko v. Connecticut in 1937, the U.S. Supreme Court upheld the first-degree murder conviction and death sentence of a man put on trial twice for the same crime in violation of the double-jeopardy clause of the Fifth Amendment. The first time he was convicted of second-degree murder and sentenced to life, but the state was not satisfied. The Supreme Court said the Fifth Amendment did not apply, and he was executed.

This finally was changed in Benton v. Maryland in 1969, when the court held that protection against double-jeopardy was a fundamental right applicable to the states through the 14th Amendment.

3. When Congress proposed the Bill of Rights, what we know today as the First Amendment was listed third.

It moved up to its exalted position only because the original first two amendments were not ratified at that time. The original first amendment would have enlarged greatly the size of the U.S. House of Representatives. Those who proposed that amendment believed that if members of the House represented districts that were too big geographically and in population, they would not be familiar with the needs of local communities. The second amendment dealt with congressional pay raises.

Not enough state legislatures, which had to ratify the amendments, thought they were important enough to add to the Constitution.

4. The last approved amendment - the 27th - was proposed by Congress in 1789 with no expiration date.


It was the amendment on Congressional pay raises mentioned above. It wasn't ratified until 1992, 203 years later. Under the amendment, no pay raise for Congress can take effect until after a general election.

5. If no presidential candidate wins a majority of electoral votes or if there is a tie, the election is decided by the House of Representatives.

Under the "unit rule" in the Constitution, each state, regardless of the size of its House delegation, gets one vote. California has 70 times the population of Wyoming, yet those two states would have equal participation in the election of the president.

6. Congress has the power to alter the appellate jurisdiction of the federal courts, including the Supreme Court.

Almost all cases the Supreme Court hears are appealed from state or federal courts. (A few cases go directly to it without having been considered by a lower court.)

If Congress wanted, it could remove all cases dealing with abortion or other controversial issues from the court's docket. If such a law were passed and the president vetoed it, Congress could do it anyway by overriding the veto.

7. Congress has the power to change how many justices serve on the Supreme Court.

The Judiciary Act of 1789 set the number at six. As the nation's population grew, Congress increased it to seven in 1807 and then to nine in 1837. During the Civil War, Congress authorized 10 seats to allow Abraham Lincoln to appoint another justice who would support the war, but when Andrew Johnson became president, Congress reduced the number to seven. A month after Ulysses S. Grant was inaugurated in 1869, Congress raised it to nine, where it has been ever since.

No serious effort to change the size of the court has occurred since 1937, when Franklin Roosevelt proposed that the number of justices be increased to 15.

8. The framers of the Constitution worried that the vice president would have nothing to do, so they made that person the head of the Senate who can break tie votes.

During the 1787 convention, Roger Sherman said "if the vice president were not to be president of the Senate, he would be without employment."

9. The vice president, as Senate president, can preside over his or her own impeachment trial.

The Constitution says the Senate shall try all impeachments. When the president is on trial, the chief justice is in charge. No vice president has been impeached, although two have resigned. In 1973, if Vice President Spiro Agnew had not resigned after being indicted for crimes committed while a public official in Maryland, he could have presided over his own impeachment trial in the Senate.

10. For much of the nation's history, members of Congress elected in November of even-numbered years were not sworn in until March and did not hold their first session until the following December, 13 months after they were elected.

This was changed in 1933 by the 20th amendment. Now members of Congress take office on Jan. 3, and their first session begins on that day.

Richard Labunski (www.richardlabunski.com) is a journalism professor at the University of Kentucky and author of "James Madison and the Struggle for the Bill of Rights" (Oxford University Press).

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