It is Friday, so it must be time for the Friday Constitutional! This is the repost of my series looking at the United States Constitution. I am reposting it because of the up-tick of interest by the Right in the foundational document of our Republic. There has been some updating for events that have transpired since the original posting of this series.
The intent here is to read through and explain (as best as I can) what each part means and does. Last week we covered the Preamble, and Sections One and Two of the Constitution. If you are interested in that part of the document, you can find the diary at this link:
Friday Constitutional - Preamble, Article One, Sections 1 And 2
Now onward to Section Three, which deals primarily with the structure of the United States Senate.
Section Three
Clause One:
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof,3 for six Years; and each Senator shall have one Vote.
This clause is pretty straight forward, it sets out that each State shall have two Senators, and they serve for a term of six years. What is interesting to me is that the Framers thought that it was important enough to make clear that each Senator would only ever have one vote. It must have been important to them, specifically in the Senate, as they did not use the same language when setting forth the rules for the House of Representatives.
Also notice that originally it was the State legislature that elected Senators not the public at large. In 1913 the 17th Amendment changed that to state that Senators would be elected by the people of the state. Historical fun fact, the State of Utah was the only state to vote against ratification. It was never subsequently ratified by that state. Now we have several of the Tea Party favorites looking to undue the 17th Amendment in the name of Freedom.
Clause Two:
Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
In this clause the Constitution sets out the rules for the dividing the Senate in to the "classes" so that only one third of the Senate will face re-election at any given time. I wonder how much political infighting went into the selection of each class as two thirds of those first Senators did not have a six year term but a two or four year one. As with Clause One the way that Senators are replaced has been changed by the 17th Amendment. In that amendment it directs the Governor of the state to hold an election to fill any vacant seat, but it allows the State legislature to give the Governor the power to appoint a temporary Senator until the seat is filled in an election that the Legislature determines the timing of.
Basically the change means that if there is no direction from the State Legislature as to the way that a seat should be filled, the Governor has to call an election as soon as possible. But if the Legislature has set down rules all the Governor can do is appoint someone to fill the seat until the election those rules set out is held. This is why Gov. Rod Blagojevich was able to get himself in such deep water. The Legislature of Illinois set out rules for an appointed Senator to serve out the rest of the term. Too bad trying to sell that seat for political or monetary favors is illegal.
Clause Three:
No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.
This clause is similar to Section Two, Clause Two which sets the minimum age and citizenship requirements for serving in the Senate. It is interesting the that the Framers felt that it was perfectly fine to be a Representative at age 25 but you would need five more years and two more of citizenship to be a Senator. To me this shows that they knew the Senate would be a more measured and deliberate body, and so with typical 18th Century thinking decided that those would be Senators should be more mature. I doubt that they ever anticipated that some Senators would still be serving when they were more than three times that benchmark or that numerical maturity did not automatically equal emotional or political maturity.
Clause Four:
The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
This is one of the few places where the role of the Vice President is articulated. Since it is one sentence it might have been nice if Gov. Palin (Snow Queen, AK) actually knew what it said. It is crystal clear to me; the VP has a vote in the Senate only when there is an equally divided vote. That is pretty inclusive. If there is a vote on a Judge, then the VP can break a tie. If there is a vote on procedure the VP can break a tie. If there is no tie, then the VP has no vote.
Now it does say that the VP is the President of the Senate, but is says nothing of the role that he or she should play. That comes a little later, in Section Four, Clause One.
Clause Five:
The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.
This clause allows for the Senate to choose (or chuse as the archaic English spelled it) the officers of the Senate. It also makes a particular office of President pro tempore, for those times when the VP is not there or is acting as the President. That seems to indicate that while the VP is the President of the Senate, he is, contra to what VP Cheney would argue, actually part of the Senate, since the Constitution does not allow you to hold two offices at once and when he is exercising his responsibilities in as President, he is not allowed to the President of the Senate.
Now, I know this is not how Clause Five has been traditionally interpreted, but that is what the language of the Clause says. It gets complicated because the Senate is allowed to set its own rules and those rules seem to say that the VP gets to do nothing but break ties, regardless of what the Constitution says (see why this is a so hard?) I think that it might be necessary to look at the actual rule for the Senate before this can be clear, but that is for some other series.
Clause Six:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
Most of us know that the Senate is the place where an impeached president is tried. It is also the place where all federal impeachments are tried. To me this is why there are so few impeachments, as the Senate does not want to spend its time as jurors rather as legislators. It also provides for the Chief Justice of the Supreme Court to be the presiding judge when a president is impeached.
It also sets a very low bar for the conviction. Why do I think the bar is low, instead of high? Well, it is just this; in a regular jury trial to convict the jury must be unanimous. To convict in an impeachment trail as many as 1/3 of the jurors can believe in the innocence of the accused and still he or she can be found guilty. Was this because the Framers wanted those in Federal office to be always on the white side of gray? I don’t know for sure, but that seems a good bet, as there were not the entrenched political party’s of today, which make conviction on impeachment so much harder. It seems the Framers were not willing to wait for the people to be ready to throw someone out of office before they would act themselves.
Clause Seven:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
Clause Seven lays out the extent of the punishment that can be levied in the event of conviction on impeachment. Note that it says "shall not extend further than" when it talks about the penalties. A lot of the Netroots folks assume that a conviction in an impeachment trial automatically would mean removal from office and disqualification from holding future office, but that is not what the Constitution says. It says that is maximum you can do; it makes no claims on the minimum. Now it seems likely that, say, a president convicted in the Senate would get the full force of the law, but he or she would not have to. This clause seems to allow the Senate to sentence the convicted party to removal from office, but still leave them qualified to run for it again. This is definitely something to think about when we call for impeachment, eh?
It is also interesting that the Constitution does not protect an impeached official from double jeopardy, you can be convicted in the Senate and still have to answer for your crimes in a regular civil or criminal court.
Section 4
Clause One:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The first clause of the forth section is interesting in that is gives power to the States as to when elections shall happen, but takes it away in the same sentence. It allows the States to make any choice they like, as long as the Congress does not make another choice. It also denies the States any say in the way that Senators are chosen. This is why the 17th Amendment was needed to give the people the a direct vote for their Senators.
Clause Two:
The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December,5 unless they shall by Law appoint a different Day.
This clause sets out that that the Congress must meet yearly. It also set a specific date of the first Monday in December for that meeting. It seems that Framers thought that the role of a Senator or Representative was not going to be a full time job. Obviously that has changed over time. In 1933 this clause was altered with the 20th Amendment. That Amendment set the start of new terms for the Congress as the 3rd of January and the President as January 20th. There is a lot more in the 20th Amendment, but you will just have to wait until we get there.
That is enough for this week. As always, credit to the Emory University School of Law for their very usable on-line Constitution, you can find it here. So, citizens, what do you think of Sections Three and Four of our Constitution?
The floor is yours.