Civics Primer

For those who never paid attention in their high school civics class…

Discourse and Diatribe  presents:

A Quick Civics Primer

(OK, maybe it’s not so quick, but there’s a lot to cover!)


 Who were the Founding Fathers?


The phrase “The Founding Fathers”, for purposes of this Primer, includes (for starters) the 55 men who signed the Declaration of Independence in 1776, a group that included John Adams, Samuel Adams, Thomas Jefferson, Benjamin Franklin and John Hancock.  These men signed this document knowing that doing so meant certain execution for “Treason against the Crown” if the Revolutionary War had not been successful – a victory that was by no means assured at the time.   Another group included among “The Founding Fathers”, are the men (including 7 who had also signed the Declaration of Independence) who attended the Federal Convention in Philadelphia over the  Summer of 1787, at what is now known as Independence Hall – the same room where the Declaration of Independence had been drafted eleven years earlier.  The stated purpose for this convention had been to correct the many flaws in the Articles of Confederation – the document under which the United States government had operated since the Revolutionary War.   Instead, these men drafted an entirely new document, the Constitution of the United States of America, establishing a strong but limited central government while protecting the rights of the states and the people.   Because this Federal Convention resulted in the drafting of the Constitution, it is now commonly known as the Constitutional Convention.

George Washington presided over the Constitutional Convention.   Other notables among the delegates included Benjamin Franklin, Alexander Hamilton, and James Madison.   Madison attended every session and kept detailed notes, giving us an accurate record of the discussions that took place.   His notes make it clear that these 55 men certainly did not agree on every issue; they were of 55 different minds, with different priorities and opinions; in fact, of the 55, only 39 actually signed the finished Constitution (of the remaining sixteen, some refused to sign, while others had left the convention for a variety of reasons).  The delegates came from twelve of the original thirteen states (Rhode Island did not send any delegates to the convention), and each did their best to represent the interests of their state as they saw fit.   As a result, the Constitution contains several compromises on major issues, making it possible for  all  of the states to eventually accept the new Constitution and the government it established.

Other prominent men of the time who should be regarded as “Founding Fathers” but who did not sign the Declaration of Independence or attend the Constitutional Convention include Patrick Henry, John Jay, and Paul Revere, to name just a few.



The Preamble of the Constitution


The introduction, or Preamble, of the Constitution lays out the basic principles on which the Constitution is based.  It reads as follows:

“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.”

This Preamble is significant for two main reasons.  First, it spells out the six appropriate roles of government:  1) to form a more perfect union; 2) to establish justice; 3) to insure domestic tranquility; 4) to provide for the common defense; 5) to promote the general welfare; and 6) to secure the blessings of liberty to ourselves and our posterity.

Second, the Preamble makes it clear that it is “We the People” that have established the government.  The magnitude of this idea cannot be overstated; it is perhaps the single-most important concept in understanding what is unique about America.  The philosophy set out in 1776 in the Declaration of Independence, that government’s true power can only come from “the consent of the governed” – what Abraham Lincoln referred to in 1863 in the Gettysburg Address, when he asked whether a “government of the people, by the people, and for the people” could survive – was an entirely new concept in the late 1700’s, a time when Europe was ruled by hereditary Monarchs who claimed their power came straight from God himself, from “the Divine Right of Kings”.  The Preamble re-affirmed that the United States government ruled only with the people’s permission – that it is the Government that serves the people, not the other way around.



The Structure of Government


The Constitution established the structure of the United States Government, dividing the federal government’s power among three co-equal branches: the Legislative branch, which makes the laws; the Executive branch, which carries out (or executes) the laws; and the Judicial branch, which interprets the laws.  This distribution of power among the three branches is based on the principle of Separation of Powers, and is intended to prevent any one official from becoming too powerful (remember, these “Founding Fathers” still had strong memories of living under a tyrannical King).  The Constitution grants each Branch some oversight over each of the others in order to limit the power of the other branches, or to keep the other Branch’s power “in check”, and in order to maintain a balance of power between the three Branches.  This is commonly called the System of Checks and Balances.  Under our Constitution, the three Branches of Government are considered to be co-equal; in other words, no Branch is considered to be above the others.  The first of these co-equal Branches, established in Article 1 of the Constitution, is the Legislative branch.



Article 1:  The Legislative Branch


The Legislative branch is made up of two Houses:  the Senate and the House of Representatives.  Both Houses meet in the Capitol Building in Washington, D.C.  This division of the Legislative branch into two Houses is the result of one of the many compromises found throughout the Constitution.  In this case, the compromise was between large states and small states.  In the Senate, every state is represented equally, which prevents the small states from being dominated by the large states.  In the House of Representatives, the proportional representation gives states with the largest populations voting power corresponding to the size of the state’s population.

The entire membership of the House of Representatives faces re-election every two years, as do one-third of the Senators.  As a result of these elections, a new Congress is elected every two years (Reality Check:  the vast majority of the Members of the “new” Congress will be returning from the previous Congress).  Each Congress is numbered.  The current Congress is the 114th Congress, and its term will end in 2017, 228 years after the 1st Congress took office.  The 114th Congress met for the first time on January 5th, 2015.  Legislation considered by Congress is designated by the number of the Congress, followed by the sequential number of the piece of legislation.  For example, “PL 94-142” would be the 142nd piece of legislation passed by the 94th Congress (the “PL” stands for “Public Law”, meaning this legislation became law.  While legislation is being considered, its number is given a prefix that designates which House first considered the bill:  “HR” for “House of Representatives” and “SB” for “Senate Bill”).



The House of Representatives


The United States House of Representatives consists of 435 voting members, each representing a Congressional District.  The number of Representatives allotted to each state depends on that state’s population.  Currently, California has the largest number of Representatives (53), while seven states (Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming) are allotted the minimum of one Representative each.  In these seven states, the Congressional District boundaries are the same as the state boundaries, and the District is called an at-large District.  In states with more than one Representative, the Congressional Districts are numbered (for example, IL-7 would indicate the 7th District of Illinois).  An election is held every even-numbered year in each Congressional District to determine who will represent that District in the House of Representatives for a term of two years.  Representatives must have been a United States citizen for at least seven years, live in the state they represent[1], and be at least 25 years old.  The Speaker of the House is the presiding officer of the House of Representatives, and is chosen from among its members.





Every ten years (in years ending in zero, such as 1980, 1990, 2000, and 2010; the next time will be 2020) the United States Census Bureau conducts a census, or population count, which determines (among other things) the population of each state.  Based on this census, each state is allotted a number of seats in the House of Representatives – as our nation’s population shifts and grows; the states gain or lose Congressional seats accordingly.  Once they know how many seats they will have, the states establish that same number of Congressional Districts, drawing boundaries that divide the population as equally as possible among the congressional Districts (currently, each Congressional District is made up of about 650,000 people).  This process is called redistricting and occurs every ten years, with the new Districts established in time for the election following the census (in years ending with the number 2, such as 1982, 1992, 2002 and 2012; the next time will be 2022).

During the redistricting process, there is often disagreement over exactly where the district boundaries should be, and one political party will often accuse the other of “gerrymandering”, or drawing the Congressional District boundaries in a way that assures that political party an advantage in the election.  This concept is named after Elbridge Gerry, a signer of the Declaration of Independence and one of the delegates to the Constitutional Convention who refused to sign the finished Constitution[2] and who, as Governor of Massachusetts, oversaw the redistricting process in that state.  The shape of one of the districts, clearly designed to be a safe district for Gerry’s political allies, resembled a salamander, and a political cartoonist labeled the district a “Gerry-mander”.  The term stuck, and now refers to drawing district boundaries for political advantage.



Exclusive Powers of the House of Representatives


Under the Constitution, all bills for raising revenue must be introduced and first considered in The House of Representatives.  The House of Representatives has the sole power of impeachment, or the power to accuse someone who holds a government position of actions that, in the opinion of a majority of the House of Representatives, warrant their removal from that office (an office-holder who is impeached by the House then goes on trial in the Senate, which determines whether the person shall remain in office or be removed from office).  The House chooses its own presiding officer, called the Speaker of the House, from among its members, and can vote to punish – or even expel – a Member.



The Senate


The Senate consists of two Senators from each state, regardless of the size or population of the state (since there are 50 states, there are 100 Senators).  Senators must have been a United States citizen for at least nine years, live in the state they represent, and be at least 30 years old.  The Senators from each state are elected, on a state-wide basis, to a six-year term.  Their terms expire on a rotational basis, so that one-third of the Senators’ terms expire every two years.  The Vice President of the United States serves as the presiding officer in the Senate, but does not vote unless there is a tie vote among the voting Senators.



Exclusive Powers of the Senate


Under the Constitution, the Senate has the power to consent – or not to consent – to presidential appointments, such as ambassadors, Justices of the Supreme Court and members of the President’s cabinet (by a simple majority vote), and to ratify all treaties with foreign nations (by a two-thirds vote).  The Senate is given the power to hold trials for those impeached by the House of Representatives (if the President is on trial, the Chief Justice of the Supreme Court presides over the Senate for the trial), and, with a two-thirds vote, remove the impeached official from office.  The Senate can vote to punish – or even expel – a Senator.



The Powers of Congress


Article 1, Section 8 of the Constitution grants very specific powers to the Congress.  They read as follows:

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.

This last clause, often called the “necessary and proper clause” or the “elastic clause”, allows the Congress to address issues that were not foreseen by the Founding Fathers.  This is a key factor in allowing the Constitution to work as a “living document”, being adaptable to the times.

Other powers granted to Congress by the Constitution include the power to admit new states to the union, to make all rules and regulations regarding territories of the United States, to propose amendments to the Constitution (3/4 of the states must ratify any proposed amendment), declare the punishment for treason, and to determine the manner in which the public acts, records, and judicial proceedings of the states are verified.

Article 1, Section 9 of the Constitution places very specific limits on the powers of Congress.  These include prohibitions against Bills of Attainder, or laws that apply to specific persons, and ex-post-fact laws, or laws that are applied retroactively.  Congress is also prohibited from suspending habeas corpus, or the right to appear in court to challenge your detention, “unless when in cases of rebellion or invasion the public safety may require it” (it was suspended during the Civil War, for example).   Other limits on the power of Congress found in the Constitution include the prohibition against establishing any religious test as a qualification to hold office in the United States and a prohibition against creating a new state out of portions of existing states without the consent of the states affected.



How a Bill Becomes a Law


The basic purpose of the Legislative branch is to draft legislation.  A bill, or proposed legislation, is introduced in one of the Houses by a member of that House, or legislation can be submitted by the President.  The bill will then be assigned to a committee within that House that specializes in the subject matter of the bill.  Committees in each House are made up of members of that House, apportioned to the political parties in approximately the same ratio as exists in that House as a whole.  The lead member of the committee from the Majority party is the Committee Chairman, and the lead member of the committee from the minority party is called the Ranking Member.  After holding hearings on the bill, during which the committee members hear from experts in the appropriate field(s), propose and vote on amendments to the bill, and debate the issues among themselves, the committee votes on whether they will recommend the bill to the full House.  If the bill fails to win the committee’s recommendation (or if the committee Chairman refuses to hold the hearings, which essentially prevents the bill from passing), it is said that the bill “died in committee”.  If, on the other hand, the committee votes to recommend the bill’s passage to the full House, a debate on the bill will be placed on that House’s schedule.  The members of that House will then debate the bill, often offering amendments to it – each amendment is then voted upon – and finally a vote of the full House takes place.  If the bill does not achieve a majority vote, the bill dies.  If the bill passes with a majority vote, it is then sent to the other House, where the entire process starts all over again.

During the debates on the bill in the other House – both in committee and in the full House – amendments can be offered and attached to the bill.  As a result, by the time the second House votes on the full bill, they are usually voting on a very different piece of legislation than was passed by the first House.  The Constitution requires that both Houses pass the bill – meaning the same version of the bill.  If the two Houses have passed different versions of a bill, that bill is then sent to a conference committee, made up of members of both parties in both Houses.  The conference committee tries to find a compromise between the two versions of the bill that will be acceptable to both Houses.  This compromise is then voted on in both Houses.  If it passes in both, it is sent to the President for his signature.

If the President approves of the bill, he signs it and the bill becomes a law.  If the President does not approve of the bill – or any part of the bill – he has the option to veto the bill, meaning he refuses to sign it. The bill will then be sent back to the House where the bill originated, along with the President’s reasons for refusing to sign it.

If the President signs the bill, the entire bill becomes law; if the President vetoes the bill, the entire bill is sent back.  Many people believe that the President should have the power of a line-item veto, or the ability to refuse to sign just a part of a bill while allowing the rest of the bill to become law.  In fact, Congress granted President Clinton this power in the 1990’s, but the Supreme Court ruled it unconstitutional.  It would now require an Amendment to the Constitution in order to grant the President the power of the line-item veto.

The President has a rarely-used third option, called a pocket veto.  If the President does not sign the bill within ten days of receiving it (not counting Sundays), and Congress does not adjourn during this period, the bill becomes law without the President’s signature.

If the President vetoes the bill, it can still become law if both Houses of Congress pass the vetoed bill again with at least a two-thirds majority in favor of the bill.  This is called overriding the President’s veto.



Article 2:  The Executive Branch


The second of the co-equal branches of government established by the Constitution is the Executive Branch.  The Executive Branch consists of the President of the United States, the Vice President, and fifteen Executive Departments:

  • State
  • Treasury
  • Defense
  • Justice
  • Interior
  • Agriculture
  • Commerce
  • Labor
  • Health and Human Services
  • Housing and Urban Development
  • Transportation
  • Energy
  • Education
  • Veteran’s Affairs
  • Homeland Security

The Justice Department is led by the Attorney General; the other Departments are led by a Department Secretary (Secretary of State, Secretary of Defense, etc.).  Together with the Vice President and other certain officials, the leaders of the Executive Departments make up the President’s “Cabinet”.

In addition to the fifteen Executive Departments, there are a number of staff organizations grouped into the Executive Office of the President. These include the White House staff, the National Security Council, the Office of Management and Budget, the Council of Economic Advisers, the Office of the U.S. Trade Representative, the Office of National Drug Control Policy and the Office of Science and Technology Policy.

There are also several independent agencies such as the United States Postal Service, the National Aeronautics and Space Administration (NASA), the Central Intelligence Agency (CIA), the Environmental Protection Agency, and the United States Agency for International Development. In addition, there are government-owned corporations such as the Federal Deposit Insurance Corporation and the National Railroad Passenger Corporation (aka: Amtrak).



The Electoral College


The President and Vice President are elected by a system commonly referred to as the Electoral College.  Under this system, each state is granted a number of electoral votes equal to the combined number of Representatives and Senators that state has in Congress.  California currently has the largest number of electoral votes (55; the sum of its 53 Representatives and 2 Senators), while seven states (Alaska,Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming) have the minimum number of 3 electoral votes (corresponding to the minimum Congressional representation of one Representative and two Senators).



How Electors Are Chosen


Under the Constitution, each state may determine how to select the electors who will actually cast these electoral votes.  In each state, the political parties propose a slate, or group, of electors – people who can be counted on to cast their electoral votes for that party’s candidates.  These electors are usually party activists and officials, rather than politicians; under the Constitution they cannot hold any other office at the time they are selected as electors.  48 of the states grant all of their electoral votes to the slate of electors proposed by the party whose candidates win a plurality (more votes than anyone else, but not necessarily a majority) of that state’s popular vote.  The remaining two states, Maine and Nebraska, divide their electoral votes by granting two electoral votes (corresponding to the two Senators) to the slate of electors proposed by the party whose candidates win a plurality of the state’s popular vote, and granting the remaining electoral votes based on the popular vote in each congressional District within the state.

The people cast ballots in November of every fourth year, and these results determine which proposed slate of electors will cast their state’s electoral votes that actually elect the President and Vice President. Each elector casts separate ballots for President and Vice President, at least one of whom cannot be a resident of their own state.  These electoral votes are cast in December, and are opened in front of a joint session of the newly-elected Congress at the beginning of January.  There are currently a total of 538 electoral votes (corresponding to the 435 Representatives and 100 Senators, plus 3 electoral votes granted to the District of Columbia by the 23rd Amendment)[3].  A majority of these electoral votes, or at least 270 of the 538, for President are required to be elected President and, similarly, 270 electoral votes for Vice President are required to be elected Vice President.





If no candidate receives a majority of the electoral votes (this is extremely unlikely, but not impossible, in our present two-party system; a strong “3rd-party” candidate could cause this to happen.  The only time this has ever happened was 1824.), the House of Representatives would choose the new President from among the top three candidates, with each state’s delegation having one vote and a majority of these state delegations required for election.  If no one has a majority of the electoral votes for Vice President, the Senate chooses the new Vice President from among the top two candidates, with each Senator having one vote.  In this circumstance, a quorum, or enough Senators to conduct business, of at least two-thirds of the full Senate (currently 67 or more Senators) must be present, and a candidate must receive the votes of a majority of the full Senate, or at least 51 Senators, in order to be selected as Vice President. One interesting note: There is no requirement that the House and Senate choose a President and Vice President from the same political party.



The President


Under the Constitution, only a natural-born citizen who is at least 35 years old and has lived in the United States at least 14 years can be President (under the 12th Amendment, the Vice President must meet the same qualifications as the President).  The President of the United States is the most powerful officer in the United States government.  He is often referred to as “the Leader of the Free World”[4], and is arguably the most powerful political figure in the World.

The President and his family reside in the Executive Mansion, commonly known as “The White House”, which is located at 1600 Pennsylvania Avenue NW, in Washington, D.C.  Attached to the White House are two “wings” – the “East Wing” and the “West Wing” – which include offices for various officials.  The President’s office is known as the “Oval Office” (named after its shape – it is literally an oval), and is located in the West Wing.



Powers of the President


The President is the Commander-in-Chief, or the highest person in the chain of command, of the United States military, meaning that he can order our armed forces into battle when he believes it to be necessary, and he commissions all officers.  He is responsible to “take care that the laws be faithfully executed”, meaning that it is his job to enforce the laws.  He enforces the laws through the executive departments, and can require the leaders of those departments to submit to him, in writing, their opinions on various issues within their jurisdiction.  He can propose legislation to Congress, call Congress into a Joint Session, when the two Houses meet together, and adjourn Congress if the two Houses cannot agree on a time for adjournment.

The President nominates Ambassadors, Cabinet Members, Justices of the Supreme Court and other federal judges, and other officers of the United States.  These nominations must be approved by the Senate, but if the Senate is not in session the President can make a recess appointment, or an appointment that does not require Senate approval, but which expires at the end of the current session of Congress.  The President can make treaties with foreign nations, but a two-thirds vote of the Senate is required to ratify a treaty.  He can grant reprieves and pardons, and meets with foreign ambassadors and other officials.

The President is also the most visible official of the United States government, and as such, can influence popular opinion using what is called the “bully pulpit”.  In other words, the media will (almost) always report Presidential actions and statements, and he can use this to his political advantage, creating favorable public opinion and support for his policies, often forcing Congress to address his proposals.



The State of the Union Address


Every year, usually in January (or sometimes in early February), the President delivers his State of the Union message to a joint session Congress – the only communication the President is specifically required to provide to Congress under the Constitution[5].  This address is televised across the nation and around the world, and is the most-watched speech given anywhere in the world.  The President will use this occasion to report on our nation’s progress both at home and around the world, to encourage Congress to pass legislation he supports, and to announce new policy proposals.  This address is attended by both Houses of Congress, the Vice President, members of the President’s cabinet, Justices of the Supreme Court, and many other dignitaries.



The Presidential Line of Succession


The Presidential line of succession is the list of government officials who would be in line to become President should the President die, resign, or otherwise be unable to discharge the powers and duties of his office.  Should such a thing occur, the highest person on this list who meets the qualifications to be President (a natural-born citizen, at least 35 years old, and 14-year resident of the United States), and who is able to assume the office, would become President.  The list starts with the Vice President, who is followed by the Speaker of the House of Representatives, then the President Pro Tempore of the Senate (a Senator chosen by the other Senators, but traditionally the longest-serving Senator from the majority party.  Currently this position is held by Senator Orrin Hatch of Utah, who has served in the Senate since 1977 and is 81 years old).  Following the President Pro Tempore of the Senate in the Presidential line of succession are the members of the President’s cabinet in the order that their departments were established by Congress:  State, Treasury, Defense, Justice, Interior, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, Energy, Education, Veteran’s Affairs, and Homeland Security.  Because so many of the officials on this list are gathered together in one place during the President’s State of the Union address, for security reasons at least one person in the Presidential line of succession (usually a Cabinet member) will not attend the speech, but will instead be spending that time in “an undisclosed location”.



The Vice President


The Vice President is elected alongside the President as part of a ticket, which consists of a political party’s candidates for the two offices.  The Vice Presidency is the result of another compromise at the Constitutional Convention.  The Founding Fathers were trying to design a system of election that was acceptable to all the states, and it was necessary to assure the small states that the election of the President would not be dominated by the large states.  Requiring electors to vote for two people, at least one of whom could not be from their own state, and giving the Vice Presidency to the candidate who came in second (as the Constitution originally did – they are now chosen on separate ballots as required by the 12th Amendment), reassured those states that no single state could dominate the Presidency. Additionally, the creation of the Vice Presidency solved the problem of Presidential succession.  Finally, apparently to give the Vice President something to do, the Vice President was made the presiding officer of the Senate, voting only in case of a tie.

The concept of a Vice President was not introduced until almost the very end of the Constitutional Convention, and because of this some aspects of the office were overlooked.  Specifically, there was originally no provision in the Constitution for filling a vacancy in the office of the Vice President, and there is still nothing in the Constitution that grants the Vice President a salary (the President, Members of Congress, and Federal Judges are all guaranteed a “compensation for their services” by the Constitution; there is no such provision for the Vice President).  Finally, the Constitution states that if the President (and only the President) is being impeached, the Chief Justice of the Supreme Court presides over the Senate trial; for all other impeachments the regular presiding officer, the President of the Senate, would preside over the trial. Constitutionally, the President of the Senate is the Vice President,  meaning that the Vice President would preside over any impeachment trial except that of the President – including his or her own trial if he or she  (the Vice President) were to be impeached.

The first of these oversights – regarding the filling of a vacancy in the office – was allowed to go uncorrected until the 1960’s, when the 25th Amendment was passed and finally set up a means to fill a vacancy in the Vice Presidency (prior to passage of the 25th Amendment, if the office became vacant it simply remained vacant until a new Vice President was inaugurated after the next election).  The new process requires the President to nominate a new Vice President, who must then be approved by majority votes in both Houses of Congress.  This new process was first used when President Richard Nixon selected Gerald Ford as the new Vice President after Vice President Spiro Agnew resigned.  When President Nixon also resigned, Ford became President and selected Nelson Rockefeller as the new Vice President.  These are the only times this process has been used.  The 25th Amendment also, for the first time, accounted for a President’s temporary inability to discharge the powers and duties of his office (for example, if the President is undergoing surgery).

The second oversight – regarding the Vice President’s salary – was corrected by the First Congress in 1789, which agreed to pay the Vice President out of the Legislative Branch’s budget, since he presides over the Senate.  To this day, the Vice President is paid his salary by the Legislative Branch, not by the Executive Branch.  He also maintains an office in the Capitol Building, in addition to his Executive Branch office.

The remaining oversight, regarding the Vice President presiding over his or her own impeachment trial, involves a situation which has never occurred in American history.  A more detailed discussion of this question can be found on the “Constitutional Quandaries and Conundrums” page (scroll down to “Constitutional Quandary and Conundrum  #4).

As a member of the President’s cabinet and as successor to the Presidency, the Vice President is clearly a member of the Executive Branch.  However, as the Presiding officer of the Senate, he is just as clearly a member of the Legislative Branch, from which he also receives his salary.  There is no other official in the federal government quite like the Vice President; he is the only official who is a member of more than one branch.  He is also the only member of the Executive Branch that cannot be fired by the President.



The President’s Cabinet


Each of the fifteen Executive Departments (Departments of State, Treasury, Defense, Justice, Interior, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, Energy, Education, Veteran’s Affairs, and Homeland Security) enforces the laws related to its area of jurisdiction.  The leaders of the fifteen Executive Departments, together with the Vice President and other certain officials, form the President’s Cabinet.

The Cabinet meets with the President on a regular and/or as-needed basis, either as a group or individually, to offer advice on issues facing the country.  Cabinet members are nominated by the President and must be approved by the Senate, and serve at the pleasure of the President – meaning that the President can fire them at any time (usually this takes the form of the President asking for the cabinet member’s resignation).

Each Executive Department is housed in a headquarters building in Washington, D.C.   Some of these department headquarters buildings are well known to Americans.  For Example, the Treasury Department building (seen on the reverse of a $10 bill) is directly across the street from the White House.  The Department of Defense is headquartered at a building simply called “the Pentagon” (because of its 5-sided shape), and the Department of State headquarters building is known as “Foggy Bottom” (after the area of Washington where it is located).



Article 3:  The Judicial Branch


The third of the co-equal branches of government established by the Constitution is the Judicial Branch.  The Judicial Branch consists of the nation’s highest court, called the Supreme Court, and, according to the Constitution, “such inferior courts as the Congress may from time to time ordain and establish”.  These “inferior” courts that have been established by Congress include the Federal District Courts, which hear criminal and civil cases under federal law and the Constitution, the Circuit Courts of Appeal, which hear appeals of decisions from the Federal District Courts, and special courts (such as the FISA court[6]).



The Supreme Court


The Supreme Court consists of nine judges, called Justices, who are appointed by the President with the consent of the Senate, and who serve on the Supreme Court “during good behavior”, meaning until they resign, they die, or they are impeached and removed from the Court by Congress.  While there is no Constitutional requirement for qualification as a Supreme Court Justice (or for any other federal judgeship, for that matter), Supreme Court Justices are usually qualified by having served as a judge of the Circuit Courts of Appeal, the Federal district Courts, or State Supreme Courts, as Constitutional Law Professors at major Law Schools, as prominent attorneys, or even as politicians (and in one case – William Howard Taft – as a past President of the United States).

There is one Chief Justice, who is the presiding officer of the Court but whose vote counts the same as the others, and eight Associate Justices.   Currently, the longest-serving Justice on the Supreme Court is 79 -year-old Associate Justice Anthony Kennedy, who was appointed to the Court by President Ronald Reagan in 1988.  The newest Justice on the Supreme Court is Associate Justice Elena Kagan, appointed by President Barack Obama in 2010.  The Chief Justice is John Roberts, appointed by President George W. Bush in 2006.  The other Associate Justices (in the order they were appointed to the Court) are Justice  Clarence Thomas (appointed by President George H. W. Bush), Justices Ruth Bader Ginsberg – at 83, the Court’s oldest current Justice –  and Steven Breyer (appointed by President Bill Clinton), Justice Samuel Alito (appointed by President George W. Bush), and Justice Sonia Sotomayor (appointed by President Barack Obama).  There is one vacancy,  for the seat left open by the death of Associate Justice Antonin Scalia. President Obama has nominated Merrick Garland, the Chief Judge of the United States Circuit Court of Appeal for the District of Columbia, to replace Justice Scalia. As of this writing (July, 2016), the Senate has not addressed the nomination.

The Supreme Court meets in the Supreme Court building, located across the street from the Capitol Building in Washington, D.C.  It begins its annual term on the first Monday in October, and finishes its session in late June, when the Justices will often hand down their decisions in the most controversial cases.  During this term the Court will hear two types of cases.  In some cases the Court has original jurisdiction, meaning the type of case that goes directly to the Supreme Court.  The Constitution grants the Supreme Court original jurisdiction in “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party”.  The vast majority of cases heard by the Supreme Court, however, are those in which the Court has  appellate jurisdiction, meaning appeals of lower court decisions (usually from the Circuit Courts of Appeal or various State Supreme Courts, but occasionally directly from a Federal District Court).  During the Court’s annual term, they will hear a few hundred cases selected from thousands of applications.  The Justices select the appellate cases they will hear on the basis of whether an important Constitutional principle is at stake.  It takes the vote of four Justices to decide to accept a case.  In rejecting the other cases, the Supreme Court is essentially ruling that the lower court decision stands as it was decided.

Once the Court decides to accept a case, a hearing will be scheduled, during which arguments will be made by attorneys for both sides.  The Justices will ask questions of the attorneys who are arguing the case, often leading to lively debates on Constitutional issues and providing an insight into which issues are of concern to the Justices, and which way certain Justices of the Court may be leaning.  Following the hearing, the Justices meet privately to discuss the cases they have heard and reveal to each other how they intend to vote and why.  If the Chief Justice is among the majority voting on a given case, he either writes the majority opinion himself or assigns this task to another Justice in the majority.  If the Chief Justice is not in the majority, the longest-serving Justice that is in the Majority does so.   It usually takes months for the Court to hand down its decision in the case.  In their decision, the Court will either reaffirm or overturn the lower court’s decision, sometimes sending, or remanding, the case back to the lower court for a new hearing.  The Court’s decision takes the form of a series of written opinions: the majority opinion, concurring opinions, and dissenting opinions.  The majority opinion states the actual ruling of the Court, along with the reasoning for that ruling.  If a majority of the Justices (5 or more) join in this opinion and its reasoning, that opinion becomes binding throughout the United States and creates a precedent, or a decision that will serve as a guide for future opinions.  Sometimes, however, one or more of the Justices will agree with the ruling, but for different reasons than those given in the majority opinion.  Those Justices will write concurring opinions, or opinions that join with the majority in the result, but state their different reasons for reaching that conclusion.  When this happens, the ruling of the Court is binding throughout the United States, but does not establish a precedent; the reasoning only applies to the specific case.  When one or more of the Justices disagree with both the ruling of the majority and the reasoning behind the ruling, those Justices will write dissenting opinions, or opinions which state their reasons for disagreeing with the majority ruling and reasoning.  Often, several opinions will be handed down in a given case.



The Circuit Courts of Appeal


There are eleven Circuit Courts of Appeal, each covering a geographical region of the country and each designated by a number (4th Circuit Court of Appeal, 9th Circuit Court of Appeal, etc.).  Circuit Court Judges are, like other federal judges, appointed by the President with the consent of the Senate, and serve “during good behavior”, meaning until they die, resign, or are impeached and removed by Congress. These Courts hear appeals from the Federal District Courts within their region of the country.  These hearings are not re-trials; instead attorneys argue the constitutional issues presented by the case and the trial.  Typically, a three-judge panel will hear the case first and issue their ruling, which can then be appealed to the full Circuit Court.  The decisions of the full Circuit Court can then be appealed to the Supreme Court.



The Federal District Courts


The Federal District Courts are spread across the country and are usually the first to hear cases under federal law.  Federal District Court judges are, like Supreme Court Justices, appointed by the President with the consent of the Senate, and serve “during good behavior”, meaning until they die, resign, or are impeached and removed from office by Congress.  These courts are the only federal courts which conduct actual jury trials, with witness testimony and evidence presented.  The jury decides guilt or innocence in criminal trials, or for either the plaintiff or the defendant in civil trials (lawsuits).  The judge presides over the trial and, when appropriate, imposes sentence or penalties once the jury reaches a verdict.  The verdict and/or sentence or penalty can then be appealed – usually to the Circuit Court of Appeal or, on rare occasions, directly to the Supreme Court.

The most prominent of these District Courts is the  Federal District Court  for the District of Columbia, which is the first court that hears disputes between the President and Congress.   One of the most notorious of these instances occurred during the Watergate scandal when Judge John J. Sirica presided over the trial of the Watergate burglars and later ordered President Nixon to hand over secret tape recordings of Oval Office conversations to the Watergate Special Prosecutor and to Congress, a decision upheld by the Supreme Court in United States vs. Nixon (1974).



The Power of Judicial Review


The entire Judicial Branch has the power of Judicial Review, or the power to decide whether a particular law or government action is consistent with the Constitution of the United States.  If the court determines that the law or action is not consistent with the Constitution, the law is declared to be unconstitutional, or invalid and unenforceable under the Constitution.  This decision can be appealed all the way to the Supreme Court, which is the ultimate arbiter regarding the Constitutionality of a given law – there is no appeal beyond the Supreme Court.  This power of Judicial Review is not specified by the Constitution itself, but was established by Chief Justice John Marshall’s brilliant argument in the 1804 case Marbury vs. Madison.  Since then the Supreme Court has played an essential role in United States history, ruling on every imaginable issue, from school integration to abortion to forcing President Nixon to hand over the Watergate tapes to stopping the recounts in the 2000 Presidential election.



Amending the Constitution


The Constitution may be amended at any time, but only through an extremely difficult process.  A proposed amendment to the Constitution must first pass by at least a two-thirds majority in both Houses of Congress[7].  The amendment is then submitted to the states for ratification.  Three-fourths of all states (currently 38 of the 50 states) must approve the proposed amendment in order for the amendment to be ratified.  This can either be done by the state legislatures, or by special conventions in each state – whichever method is specified by Congress[8].  When a proposed amendment has been ratified by three-fourths of the states, it becomes part of the Constitution, with the full weight of any other part of the Constitution.

During the initial debates among the states for ratifying the Constitution following the Constitutional Convention, many states expressed concern that there were not enough provisions for securing the rights of the people written into the Constitution.  In response, proponents of the Constitution promised a list of the people’s rights would be added by the first Congress through the amendment process.  Accordingly, in September of 1789, the 1st Congress sent 12 proposed amendments to the states for ratification.  In December of 1791, ten of these proposed amendments were certified as having been ratified by the states and were added to the Constitution (one of the remaining two was eventually ratified by three-fourths of the states – in May of 1992 – and became the 27th Amendment).  These first ten amendments are collectively called the  “Bill of Rights”.



The Bill of Rights


The Bill of Rights consists of the first ten amendments to the Constitution, and spells out specific rights that are retained by the American people. Among the better known rights, freedoms, and protections found in the Bill of Rights are the freedoms of speech, press and religion; the right to keep and bear arms; the freedom from government searches of your person, home, or information (unless the government has obtained a warrant or has “probable cause”); protection against self-incrimination (“the right to remain silent” and the right to refuse to testify against yourself in court – known as “pleading the fifth” (because this right is found in the Fifth Amendment); the protection against “double jeopardy” (being put on trial twice for the same crime); the right to a trial by an impartial jury, the right to an attorney, the right to confront witnesses against you; and the protection against cruel and unusual punishment.  Other rights granted by these amendments include the right to peacefully assemble, the right to petition the government, the protection against being forced to house soldiers in your home during peacetime, and the right to be paid fair market value for private property seized by the government for public use (a process known as “eminent domain”).

In addition to the specific rights found in the Bill of Rights, there are two amendments which protect the rights of the people in more general terms.  The Ninth Amendment guarantees that the people retain rights that are not specified in the Constitution, such as the right to travel throughout the United States, the right to marry the person of your choice, the right to vote, the right to enter into contracts, the right to choose your profession, the right to live where you want, and many other freedoms Americans enjoy, but which are not specifically listed in the Constitution.  The Tenth Amendment limits the reach of the federal government by guaranteeing that all powers not specifically granted to the federal government by the Constitution, nor specifically prohibited to the states, are retained by the states or the people.



Other Amendments


Since the passage of the Bill of Rights, the Constitution has been successfully amended only seventeen times – and one of these (the 21st Amendment) repealed another (the 18th Amendment).  Yet another (the 27th Amendment) was actually proposed along with the original Bill of Rights, but took 203 years to be ratified by three-fourths of the states and actually represents a structural change rather than a guarantee of rights.  That leaves just fourteen amendments that were successfully proposed and ratified between 1791 and 2008 – a period of 217 years – a clear indication of just how difficult the process is.  Of these fourteen amendments, seven are structural changes to the government; the other seven expand the rights of the people.

The structural changes include the correction of an oversight in the area of jurisdiction of the federal courts (the 11th Amendment), how the electoral college works (the 12th Amendment), allowing Congress to impose taxes on income (the 16th Amendment), providing for the popular election of Senators (the 17th Amendment), changing the date of the President’s inauguration (the 20th Amendment), imposing Presidential term limits (the 22nd Amendment), and providing a process for filling a vacancy in the Vice Presidency and clarifying the Presidential succession processes (the 25th Amendment).  The 27th Amendment, which requires Members of Congress to face re-election before receiving a pay raise, also falls under the category of structural change.

The expanded rights of the people include the abolition of slavery (the 13th Amendment); extending the rights of citizenship to former slaves by redefining citizenship to include “all persons born or naturalized in the United States” and requiring states to provide due process of law (the 14th Amendment); guaranteeing the right to vote regardless of race (the 15th Amendment), or gender (the 19th Amendment); giving residents of Washington D.C. electoral votes in Presidential elections (the 23rd Amendment); prohibiting poll taxes (the 24th Amendment); and lowering the voting age to 18 (the 26th Amendment).

There has only been one Amendment that restricted the rights of the people.  The 18th Amendment, ratified in 1919, prohibited the manufacture, sale, transportation, import, or export of “intoxicating liquors”.  Known as “prohibition”, this was repealed by the 21st Amendment in 1933.





[1] The Constitution requires only that the Representative live in the  state  they represent, but political reality dictates that they live within the District boundaries in order to win election.

[2] Gerry listed eight reasons for his refusal to sign the Constitution, one of which was the Vice President’s role as the presiding officer of the Senate, which he considered to be a violation of the principle of separation of powers.  Ironically, Gerry later became Vice President (under President James Madison) and, while riding in his carriage on the way to the Senate chamber to preside over the Senate, suffered a pulmonary embolism and died.

[3] Beginning with the Presidential election of 2012, this number will increase to 539 as a result of an additional – and largely Republican – Congressional District being established (initially in Utah) to balance the addition of a voting Representative from the largely Democratic District of Columbia (already included in the total as part of the District of Columbia’s three electoral votes).  The total number of electoral votes to create the majority required for election will remain at 270.

[4] The term “Leader of the Free World” comes from the era of the  Cold War  (a war without warfare, rather than a shooting – or “hot” – war), when NATO (the North Atlantic Treaty Organization, made up of the United States, Canada, and Western Europe) faced the communist government of the Soviet Union (whose people were not “free”), which controlled Eastern Europe through a treaty called the Warsaw Pact.  The collapse of the Soviet Union  and the spread of Democracy throughout Eastern Europe ended the Cold War.

[5] The Constitution does not require the President to give the State of the Union message  every year, only that “He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient…”, but the annual January address has become an expected ritual.

[6] FISA stands for the Foreign Intelligence Surveillance Act.  The FISA Court grants warrants for wiretapping and other electronic surveillance within the United States, and conducts its business in secret.

[7] There is actually another way to propose amendments.  If two-thirds of the states request it, Congress is required to call a special convention for proposing amendments.  Any amendments proposed by such a convention would be submitted to the states for ratification.  This option has never been utilized.

[8] Only the 21st Amendment – which repealed the 18th Amendment, which had prohibited the sale, transport, and consumption of alcohol – was passed using the special state conventions; all others have been passed by the state legislatures.




© 2016 by David Bleidistel.  All rights reserved.