Some Things that Aren't in the Constitution:

Things That Are Not In the U.S. Constitution

by Steve Mount

Have you ever heard someone say, "That's unconstitutional!" or "That's my constitutional right!" and wondered if they were right? You might be surprised how often people get it wrong. You might also be surprised how often people get it right. Your best defense against misconception is reading and knowing your Constitution.

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

One critique of this page is that it is full of nit-picks. Slavery, for example, may not be "in" the original Constitution, but it is in the original Constitution — the word may not have been there, but the concept was. This is absolutely true. But by studying the words and coming to know them intimately, we gain a better understanding of our history and how some arguments about the Constitution endure.

• The Air Force
• Congressional Districts
• The Electoral College
• Executive Order
• Executive Privilege
• Freedom of Expression
• (Absolute) Freedom of Speech and Press
• God
• Immigration
• Impeachment means removal from office
• Innocent until proven guilty
• It's a free country
• Judicial Review
• Jury of Peers
• "Life, Liberty and the Pursuit of Happiness"
• Marriage
• Martial Law
• No taxation without representation
• Number of Justices in the Supreme Court
• "Of the people, by the people, for the people"
• Paper Money
• Political Parties
• Primary Elections
• Qualifications for Judges
• The right to privacy
• The right to travel
• The right to vote
• The separation of church and state
• The Separation of Powers Clause
• Slavery
• "We hold these truths to be self-evident"
• Other topics

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The Air Force

The Constitution was ratified in 1787, long, long before the advent of the airplane. It provides, specifically, for a navy and an army in Article 1, Section 8. Though they were aware of lighter-than-air flying craft, the Framers could not have reasonably provided for an Air Force. It should be noted at the outset that the Constitution does not provide, specifically, for the other uniformed services, the Marines and Coast Guard. The Marines, however, as an arm of the Navy, could be excepted; and the Constitution does provide for "naval forces," and the Coast Guard could thus be excepted. How, then, do we except the Air Force? The first way is via common sense - the Framers certainly did not intend to preclude the use of new technology in the U.S. military, and because of the varied roles of the Air Force, it makes sense for it to be a separate branch. The second (and less desirable) way is historical - the Air Force originated as the Army Air Corps, an arm of the Army, similar to the Navy/Marine relationship. Basically, unless your interpretation of the Constitution freezes it in 1789, the Air Force is a perfectly constitutional branch of the U.S. military.

Congressional Districts

Congressional Districts divide almost every state in the United States into two or more chunks; each district should be roughly equal in population throughout the state and indeed, the entire country. Each district elects one Representative to the House of Representatives. The number of districts in each state is determined by the decennial census, as mandated by the Constitution. But districts are not mentioned in the Constitution. The United States Code acknowledges districting, but leaves the "how's" to the states (gerrymandering, however, is unconstitutional [as seen in Davis v Bandemer, 478 U.S. 109 (1986), though, the intent of gerrymandering is difficult to prove]).

The Electoral College

The concept of the presidential elector is certainly in the Constitution, but never is the group of people collectively referred to as "The Electoral College." Article 1, Section 2 speaks of "Electors," as do several of the Amendments, but never the college itself. The term comes from common usage in the early 1800's, in the same way that the "College of Cardinals" elects a pope, and is based on the Latin word collegium, which simply refers to a body of people acting as a unit. The term "College of Electors" is used in U.S. law, at 3 USC 4. For more on the Electoral College, see the topic page.

Executive Orders

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

Executive Privilege

Executive privilege is a right to withhold information from the legislative and judicial branches by the President or by one of the executive departments. There is question of whether the right exists at all, a question that has lingered since the very first President, George Washington, asserted executive privilege in his very first term. Most times, executive privilege is asserted for purported national security reasons. Washington, however, asserted the privilege when the House requested details of the Jay Treaty - his rationale was that the House has no role in treaty-making and hence no right to request the documents. In modern times, Bill Clinton refused to simply comply with an order to appear before a grand jury, and instead negotiated terms under which he would appear. Richard Nixon's is the most infamous use of executive privilege, and while the Supreme Court, in U.S. v Nixon, 418 U.S. 683 (1974), recognized that there exists a need for some secrecy in the executive branch, but that the secrecy cannot be absolute. The Court ordered Nixon to turn over tapes and documents that a special prosecutor had subpoenaed. More recently, the minutes and records of Vice President Dick Cheney's energy task force were requested and denied based on executive privilege. This case made its way to the Supreme Court, where the Court deflected the case and sent it back to a lower court for further adjudication.

Freedom of Expression

It is often said that one of the rights protected by the 1st Amendment is the freedom of expression. This site, in fact, uses that term in its quick description of the amendment: "Freedom of Religion, Press, Expression." But "expression" is not used in the amendment at all. This term has come to be used as a shorthand, a term of art, for three of the freedoms that are explicitly protected: speech, petition, and assembly. While the use of "freedom of expression" is ubiquitous in this area of 1st Amendment study, it is important to note exactly what "freedom of expression" refers to - let this be such a note.

(Absolute) Freedom of Speech and Press

The Constitution does protect the freedom of speech of every citizen, and even of non-citizens — but only from restriction by the Congress (and, by virtue of the 14th Amendment, by state legislatures, too). There are plenty of other places where you could speak but where speech can and is suppressed. For example, freedom of speech can be and often is restricted in a work place, for example: employers can restrict your right to speak in the work place about politics, about religion, about legal issues, even about Desperate Housewives. The same restrictions that apply to the government do not apply to private persons, employers, or establishments. For another example, the government could not prohibit the sale of any newspaper lest it breech the freedom of the press. No newsstand, however, must carry every paper against its owners' wishes.

God

It has often been seen on the Internet that to find God in the Constitution, all one has to do is read it, and see how often the Framers used the words "God," or "Creator," "Jesus," or "Lord." Except for one notable instance, however, none of these words ever appears in the Constitution, neither the original nor in any of the Amendments. The notable exception is found in the Signatory section, where the date is written thusly: "Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven". The use of the word "Lord" here is not a religious reference, however. This was a common way of expressing the date, in both religious and secular contexts. This lack of any these words does not mean that the Framers were not spiritual people, any more than the use of the word Lord means that they were. What this lack of these words is expositive of is not a love for or disdain for religion, but the feeling that the new government should not involve itself in matters of religion. In fact, the original Constitution bars any religious test to hold any federal office in the United States.

Impeachment Means Removal From Office

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

Innocent Until Proven Guilty

First, it should be pointed out that if you did it, you're guilty, no matter what. So you're not innocent unless you're truly innocent. However, our system presumes innocence, which means that legally speaking, even the obviously guilty are treated as though they are innocent, until they are proven otherwise.

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

It's a Free Country

A commonly heard mantra is, "Read your Constitution - it's a free country, you know!" Well, read your Constitution - it never says it is a free country. The implication of the aphorism is that in the United States, you can do whatever you want to do, and the Constitution is there to ensure that. It is certainly true that the Constitution protects many civil rights. The 1st Amendment ensures freedom of religious choice and freedom of speech, but those things are not without limit. You cannot create a religion that allows you to kill someone without civil punishment; you cannot use libelous or slanderous words without recourse. There are other things that restrict freedom - from the ability to suspend habeas corpus to the issuance of patents. Certainly the United States is a very free country, but it is not totally free - which is actually a good thing, unless you actually like anarchy. It is interesting to note that in his confirmation hearings in 2005, John Roberts said several times, "It's a free country." It will be interesting to see how this enters into his judicial philosophy on the Court.

Judicial Review

We often hear about the Supreme Court striking down a law or a provision in a law, or, more often, reaffirming some law or provision. Take a look in the Constitution - judicial review, as this is known, is nowhere to be found. It seems like a perfectly normal action - after all, what kind of check does the Judicial Branch have on the other two branches if laws and orders cannot be declared unconstitutional. But judicial review is not specifically mentioned. So how did judicial review come to be? In the landmark case of Marbury v. Madison, 5 U.S. 137 (1803), Chief Justice John Marshall declared a federal law, the Judiciary Act of 1789, to be unconstitutional, and thus null and void. This was the first time a Supreme Court ruling overturned a law.

Jury of Peers

People often say "I have a right to have my case heard by a jury of my peers!" when there is no such right in the Constitution. The Constitution does take up the issue of juries, however. It is the nature of the jury which is not in the Constitution. In Article 3, Section 2, the Constitution requires that all criminal trials be heard by a jury. It also specifies that the trial will be heard in the state the crime was committed. The 6th Amendment narrows the definition of the jury by requiring it to be "impartial." Note that no where is a jury "of peers" guaranteed. This is important for some historical and contemporary reasons. Historically, the notion of a peer is one of social standing - in particular, in a monarchy such as the one the United States grew up from, commoners would never stand in judgement of lords and barons. Along these same lines, since suffrage and jury service have always been closely tied (and in the beginnings of the United States it was typical for only white, male, property-owners to be allowed the vote), any combination of gender, race, and economic status would be judged by only one kind of jury, hardly by "peers."

Today, the American ideal dictates that we are all peers of one another, that regardless of gender, race, religion, social status, or any other division (except age), we are all equal. In this ideal, since we are all peers, a guarantee of a jury of ones peers would be redundant. While some argue with this ideal, it is the most democratic way to approach the subject. Juries need only be impartial, and not made up of one's peers, else the jury system would be unworkable.

"Life, Liberty, and the Pursuit of Happiness"

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

Marriage

In 2004, a lot of controversy began to swirl around the topic of marriage as homosexual marriage entered the news once again. In 1999, the Vermont Supreme Court ordered that the state must make accommodations for gay unions, bringing the issue into the public eye. Vermont created civil unions as a result. In 2004, the Massachusetts Supreme Court went a step further, and ruled that the state must accommodate not just an institution equal to marriage, as civil union was designed to be, but that gay marriage itself must be offered in the state. Subsequently, mayors in New York and California to offer gay marriage in their towns and cities, citing civil rights concerns. Those opposed to gay marriage began to urge that an amendment to the Constitution be created to define marriage as being between a man and a woman only. Opponents of the amendment pointed to the failed Prohibition Amendment as a reason why such social issues should stay out of the Constitution. In the absence of any such amendment, however, marriage is not mentioned in the Constitution at any point. More information is available on the Marriage Topic Page.

Martial Law

The terms "martial law" or "law martial" are not mentioned anywhere in the Constitution, but a key aspect of martial law, the suspension of habeas corpus certainly is - Congress cannot suspend habeas corpus except in times of rebellion or when public safety requires it. This clause, found at Article 1, Section 9, is often taken as shorthand for martial law, but in reality, martial law can exist while habeas corpus is in place - the two are commonly linked, but not mutually exclusive. More details can be found on the Martial Law Topic Page.

No Taxation Without Representation

The battle cry "No taxation without representation!" was a great political slogan coined to counter the Sugar Act of 1764. In order to help recoup the debt it incurred during the French and Indian War (or the Seven Years' War), the British Parliament passed the act, which taxed all manner of foodstuffs imported into the colonies. The Americans, in the midst of economic depression following the war, were not particularly enamored of a new tax. Some have written that the Americans were simply whining tax evaders. The slogan was good for rallying the troops with an easy issue for every one to discern: that since they were not represented in Parliament, the tax should not be levied. However, the ultimate goal of most of the agitators was not representation in Parliament, but independence.

The concept of "no taxation without representation" may be present in general in the United States. But those who are unrepresented (such as convicts and immigrants who cannot vote) are still subject to taxation. Notably, the citizens of Washington, DC, do not have representation in Congress (since 2000, DC license plates have included the phrase "Taxation Without Representation" in an effort to raise awareness of the issue, especially among tourists visiting the city). By virtue of the 23rd Amendment, however, DC does have at least three electoral votes

Number of Justices in the Supreme Court

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

"Of the People, By the People, For the People"

This phrase is commonly attributed to the Constitution, but it comes from the Gettysburg Address.

Paper Money

The Constitution never does mention paper money, a staple of today's economy. It does give the Congress the power to "coin money," however. So, is paper money unconstitutional, but coins are constitutional?

See FAQ Question #154 for a discussion of this topic.

Political Parties

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

Primary Elections

The Primary Election season can be exciting and heady as candidates for the presidency, and other national and state offices, vie for their party's endorsement and spot on the ballot. Many people today assume that because the process is second nature that it must be spelled out in the Constitution. No where in the Constitution, however, will you find any mention of how elections should be conducted. Since the Constitution is silent on the issue, we have been free to develop any system we wished, and the result is the system of primary elections we now use. Though the party elections do nothing more than choose a candidate for the "real" election, the courts have still exerted influence, reasoning that through primaries, disenfranchisement can be effected. Party elections, then, must be open to anyone asserting party affiliation - parties cannot, for example, bar any person of color solely on the basis of race. Since they are party elections, however, the Supreme Court has ruled that primary elections can bar voters not registered with that party.

Qualifications for Judges

Article 1, Section 2 specifies the qualifications to be a Representative, Article 1, Section 3 specifies those for Senators, and Article 2, Section 1 those for President. The 12th Amendment adds the Vice President. But no where does the Constitution specify how federal judges are to be qualified. There is no minimum age and no residency requirement. The primary reason for this is that the Framers were well aware of how judges became judges - they were appointed because they excelled at the law. To do that, you must have had at least a minimum of knowledge in the law (though in the 18th and 19th centuries, lawyers were often self-taught).

The Right To Privacy

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

The Right To Travel

As the Supreme Court notes in Saenz v Roe, 98-97 (1999), the Constitution does not contain the word "travel" in any context, let alone an explicit right to travel (except for members of Congress, who are guaranteed the right to travel to and from Congress). The presumed right to travel, however, is firmly established in U.S. law and precedent. In U.S. v Guest, 383 U.S. 745 (1966), the Court noted, "It is a right that has been firmly established and repeatedly recognized." In fact, in Shapiro v Thompson, 394 U.S. 618 (1969), Justice Stewart noted in a concurring opinion that "it is a right broadly assertable against private interference as well as governmental action. Like the right of association, ... it is a virtually unconditional personal right, guaranteed by the Constitution to us all." It is interesting to note that the Articles of Confederation had an explicit right to travel; it is now thought that the right is so fundamental that the Framers may have thought it unnecessary to include it in the Constitution or the Bill of Rights.

The Right To Vote

The Constitution contains many phrases, clauses, and amendments detailing ways people cannot be denied the right to vote. You cannot deny the right to vote because of race or gender. Citizens of Washington DC can vote for President; 18-year-olds can vote; you can vote even if you fail to pay a poll tax. The Constitution also requires that anyone who can vote for the "most numerous branch" of their state legislature can vote for House members and Senate members.

Note that in all of this, though, the Constitution never explicitly ensures the right to vote, as it does the right to speech, for example. It does require that Representatives be chosen and Senators be elected by "the People," and who comprises "the People" has been expanded by the aforementioned amendments several times. Aside from these requirements, though, the qualifications for voters are left to the states. And as long as the qualifications do not conflict with anything in the Constitution, that right can be withheld. For example, in Texas, persons declared mentally incompetent and felons currently in prison or on probation are denied the right to vote. It is interesting to note that though the 26th Amendment requires that 18-year-olds must be able to vote, states can allow persons younger than 18 to vote, if they chose to.

The Separation Of Church and State

The phrase "separation of church and state" does not appear anywhere in the Constitution. Thomas Jefferson wrote that the 1st Amendment erected a "wall of separation" between the church and the state (James Madison said it "drew a line," but it is Jefferson's term that sticks with us today). The phrase is commonly thought to mean that the government should not establish, support, or otherwise involve itself in any religion. The Religion Topic Page addresses this issue in much greater detail.

The Separation Of Powers Clause

Though it may be implied or even directly stated in some news reports, blog postings, or web sites, there is no clause of the Constitution that is called the "Separation of Powers Clause." This is because there is no one clause that says "separation of powers" or "checks and balances" or any other phrase that is used synonymously. The concept of the Separation of Powers is written into the first three articles of the Constitution, as detailed elsewhere.

Slavery

Originally, the Framers were very careful about avoiding the words "slave" and "slavery" in the text of the Constitution. Instead, they used phrases like "importation of Persons" at Article 1, Section 9 for the slave trade, and "other persons" at Article 1, Section 2 for slaves. Not until the 13th Amendment was slavery mentioned specifically in the Constitution. There the term was used to ensure that there was to be no ambiguity as what exactly the words were eliminating. In the 14th Amendment, the euphemism "other persons" (and the three-fifths value given a slave) was eliminated. The Slavery Topic Page has a lot more detail.

"We hold these truths to be self-evident, that all men are created equal"

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

Immigration

The Constitution never mentions immigration, so how is it that the rules for immigrants, and quotas from countries, are set by the federal government and not be the state governments? After all, as the 10th Amendment states, are the powers not delegated to the United States held by the states, or the people?

The Supreme Court has ruled that the Congressional power to regulate naturalization, in Article 1, Section 8, includes the power to regulate immigration. It would not make sense to allow Congress to pass laws to determine how an immigrant becomes a naturalized resident if the Congress cannot determine how that immigrant can come into the country in the first place.

There is also an argument that immigration is an implied power of any sovereign nation, and as such, the federal government has the power to regulate immigration because the United States is a sovereign nation. While it is true that the United States is a sovereign nation, and it may be true that all sovereign nations have some powers inherent in that status, it is not necessary to determine if immigration is such a power that does not even require constitutional mention, because the Naturalization Clause handles the power.

Other topics

I get a lot of notes from people with topics not in the Constitution. I expand on suggestions as time permits. Before time permits, here is a bullet-list of the topics that have been sent to me, each of which I hope to eventually add a few notes about:

• Constraints on the people
• Education
• Student, Animal, Gay, Lesbian Rights
• The word "democracy"
• Abortion
• Age discrimination
• Capitalism

If you can think of any more, please let me know.

Maybe the author will update this with more things, but I think right now it is already very, very interesting.