Constitutional Answers

Here are the answers to the recent Constitutional Quiz. Those who would rather know the question before learning, for instance, "It's his sled", will prefer to skip ahead to the original posting before reading this.

I have mingled the answers into the published questions because I hate trying to flip back and forth.

1. By whose power was the Constitution established?
(a) King George III
(b) George Washington
(c) The states
(d) The people
(e) God
You are expected to provide backing for your answers from the Constitution, in this as in other questions.

ANS: (d)
Always start with an easy one! Just start reading the document, and you have your answer in the first three words.

“We the People of the United States … do ordain and establish this Constitution for the United States of America.” — Preamble

Does this mean that all the people who have told you that the Federal Constitution is a creation of the States were wrong, including Thomas Jefferson? Yes.

2. Where in the Constitution does each of the following phrases occur?
a. Balance of powers
b. Executive privilege
c. Separation of powers
d. Supreme law of the Land
e. Wall of separation between church and state

a. Nowhere
b. Nowhere
c. Nowhere
d. Article 6
e. Nowhere

3. The supreme law of the land
3a.What constitutes the supreme law of the land, to which the judges in every state are bound? (Incomplete answers get very little partial credit.)

ANS: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby” — Article 6

3b. Can such law be overridden by the constitution or laws of any state?

ANS: No. “…the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." — Article 6 still

4. The Preamble consists of an explanation of why the Constitution was created, and by whose authority. What other provisions, if any, contain an explanation or justification for their existence?

ANS: A quiz needs at least two easy questions, and this is the other: The Second Amendment.
"A well regulated Militia, being necessary to the security of a free State,…"

If there is any other such item in the text, I'd very much like to know about it. Otherwise, see the Bonus Questions.

5. Three-fifths
5a. In the original intention of the Constitution there was a provision that counted three-fifths of the number of slaves, as contrasted with the whole number of all free citizens. What, specifically, did this provision have to do with?

ANS: Computing the number of representatives allowed to each state in the House of Representatives. (Also, now obsolete, determining taxes on States in proportion to population.) Article 1, section 2.

5b. Did that provision directly name “slaves”? Persons of some particular race?

ANS: No. It says “all other Persons” after naming those who are counted and those not to be counted at all.

5c. What was the purpose and effect of the three-fifths provision?
(a) To decrease the political power of slaves
(b) To increase the political power of slaves
(c) To decrease the political power of slave owners
(d) To increase the political power of slave owners
(e) Not really any of above, because there is a flaw in this question itself.

ANS: As you can guess, (e). The reason for (e): though two of the choices are simply absurd, the other two are comparative, and it depends what you compare to. To go down the list:
(a) and (b) are hopeless, because slaves could not vote; no one in their families could vote (hence it would be nonsense to argue about how women and children who couldn’t vote were still counted); they could never become voters; there was no one recognized by law or tradition to represent their interests politically. Three-fifths of nothing is nothing, which is not an increase or a decrease.
(c) Counting the slaves, who had no political power whatsoever, would produce an increase in the power of the slave-owning states relative to free states. Someone would get this power; that group, not being the slaves themselves, would be the people with political power within those states, who were the slave owners. Hence, the three-fifths rule would reduce that power.
(d) However, consider the political weight that a republic might assign to beings with no political rights — none of the rights, responsibilities, or privileges of a citizen of a free Republic; not even the rights that an alien visiting from any civilized country had either here or in his homeland, whether a subject of the King of England or of the Emperor of Japan. For such a being, whether a robot, a mule, or a slave, the correct weight in assigning representation would be none whatsoever. Relative to that, the three-fifths granted an increase in power to the slave owners.

Bonus question: Is 3/5 closer to 1 (the slave-owners’ preference) or 0 (the free states’ preference?

6. In the whole body of the Constitution before the abolition of slavery in the 13th Amendment, where is there mention of slaves or slavery, under those names or direct equivalents?

ANS: Nowhere. Examples of what it does name:
The three-fifths rule: "three fifths of all other Persons."
The slave trade: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit …" Article 1, section 9
Slavery in free states: "Person held to Service or Labour in one State, under the Laws thereof, escaping into another" Article 4, section 2

7. Religion
7a. In the body of the Constitution as it was originally adopted, laying out its purpose and the laws and procedures of the nation, where is religion mentioned directly?

ANS: “[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” — Article 6

(Bonus question: Why did these precise 18th-century lawmakers say “ever” rather than simply banning it as it bans other things?)
No answer here, as it's a matter of interpretation. But obviously it's a matter of strong emphasis rare in the text of this sober legal document.

7b.Where is any practice that is specifically religious mentioned?

ANS: An Oath, which is a religious act, is mentioned in three places: Article 1, section 3; Article 2, section 1; Article 6.

7c.Where is a distinction between any religion and any other mentioned? If there is such a place, is any preference given to one over another?

ANS: No such comparison is made directly; but for each of the religious acts mentioned in (b), the Constitution directly offers a non-religious Affirmation as being equally valid.

8. Name as many things as you can that States cannot do.

ANS: A list, not guaranteed to be complete, just long:

According to Article 1 section 10, it can’t “enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing 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.” More things that they can't do under that section:

Charge import or export duties beyond actual inspection costs without consent of Congress.

Charge ships a fee for using a port (“duty of Tonnage”). Keep troops or ships of war in time of peace. Enter into an agreement or compact with another State or a foreign power. Engage in war, except responding to actual invasion or imminent danger.

Other things:
Fail to honor the public acts, records, and judicial proceedings of any other State. — Article 4, section 1

Deny the privileges and immunities of a citizen to citizens of another state. Fail to hand over a person accused of crime in another state when that state demands it. [Now repealed: Fail to hand over an escaped slave] — Article 4, section 2

Merge with another State without consent of Congress. — Article 4, section 3

Deny its citizens a republican form of government. — Article 4, section 4

Abridge the privileges or immunities of citizens of the United States. Deprive any person of life, liberty, or property without due process of law. Deny to any person within its jurisdiction the equal protection of the law. — Amendment 14, clause 1. [Please note: privileges and immunities for citizens; due process and equal protection for persons.]

Claim representation in Congress based on a head count that includes people (initially, as a proportion of white males over 21) who are denied voting rights. — Amendment 14, clause 2

Grant any State office to any person who has violated an oath of office to the United States or any State, without approval of two thirds of each house of Congress. — Amendment 14, clause 3

Assume or pay any debt incurred in rebellion against the United States. — Amendment 14, clause 4.

Abridge the right to vote, on the basis of race, color, or previous condition of servitude. — Amendment 15, clause 1.

Appoint (rather than elect) a Senator, except on an interim basis. — Amendment 17.

Deny or abridge the right to vote on basis of sex. — Amendment 19.

Deny the right to vote for Federal offices because of failure to pay a poll tax or the like. — Amendment 24

Deny voting rights by reason of age to any person of 18 years or older. — Amendment 26

That’s my list. Please supply any (clear, explicit) prohibitions I’ve missed.

BONUS QUESTIONS: Here we read the plain words of the Constitution and apply them to matters of fact.

Bonus 1.
Bonus 1a. Is torture illegal in the United States of America? (Here and now, not hypothetically or by debatable reasoning in some court)

ANS: Yes. The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was ratified by the United States on 21 Oct 1994. Under Article 6 of the United States Constitution it is, therefore, part of the Supreme Law of the Land; and every judge in every State is legally required to respect it.

Bonus 1b. If there are any conditions in which it is actually illegal, what are they; alternatively, what are the specific exemptions from that law?

ANS: As that law bans all forms of torture by anyone subject to our jurisdiction at any time (after October 1994) in any place, it’s easier to list the exceptions than all the cases. Here is the list of national security emergencies and other extremities in which this existing United States law allows an exemption: “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” — Part I, Article 2.

Factual corrections will be welcomed. Interpretative arguments will be considered. Also, of course, any proposed additions to the list.

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