Every four years, like clockwork, everyone from that Facebook friend you thankfully haven’t seen since high school (“Guns! GUNS!!”) to your liberal aunt (“The Founding Fathers DID NOT HAVE ASSAULT RIFLES!”) becomes a self-appointed scholar on the United States Constitution.
But here’s the thing (and this is going to come as a great shock): The vast majority of those people haven’t the fuckingest clue what the OG law of the land actually defines. For such a short document — and a publicly available one at that — it’s kind of weird how its contents are virtually the stuff of urban legend. Well, contrary to what most people think …
#6. The Constitution Doesn’t Say You Get To Vote For A President
If the United States were a democracy in the purest sense of the concept, on Election Day we’d each go to our designated voting hut and toss a stone into the box of our preferred presidential candidate. Then, someone would collect all the votes from all the huts all across the nation, and at the end of the day the candidate with the biggest pile of stones would win.
Since 200-million-odd stones is a whole goddamned lot of stones — and also to account for population disparity and all that jazz — we’ve settled for the next best thing: the Electoral College, a system by which each state has a “college” of “electors” who are the ones whose votes really count. But those guys simply vote for whoever got the most popular votes in their state, so it all works out pretty much the same. What matters is that the people decide. That’s what this is all about, after all.
But Actually …
The words “popular vote” don’t appear anywhere in the Constitution, because the Founding Fathers didn’t give a single flip of their fabulous powdered wigs about your opinion. For that matter, the words “Electoral College” don’t appear in the document either.
Article II states:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Although this is pretty much the Electoral College that we love/hate today, the Constitution never calls it that, nor does it specify that said electors should be chosen via the popular vote. That’s right: As far as the Constitution is concerned, how states choose their presidential electors is their own damned business, which is why only five states used some sort of popular vote in 1792. The remaining nine let their state legislatures take care of all this election bullshit with virtually zero public input and thus zero popular votes.
If this all sounds sort of undemocratic, you know what? It should. The United States is not a democracy; it’s a republic. The Founding Fathers considered the dictionary definition of a democracy akin to anarchy, and if a bunch of states were to get together tomorrow and decide that they don’t give so much as a single, steaming flop of donkey (or elephant) doo-doo about your presidential vote … well, the Constitution is cool with that.
#5. It Doesn’t Say The Supreme Court Gets To Decide What’s Constitutional
Recently a Supreme Court justice passed away (Antonin Scalia), setting off a political firestorm — that’s because, as a member of that court, he was one of the most powerful people in the world. Congress can pass any law it wants and the president can sign it, but if the Supreme Court declares it unconstitutional, it’s dead in its tracks.
That’s by design. Every American elementary school student knows that central to the American form of government is the concept of checks and balances, as outlined by the Constitution. Three branches of government — Legislative, Executive, and Judicial — to make sure no one sips too deeply from the Well of Power that’s located deep within the dungeons beneath Capitol Hill. And how well would this system work without the Supreme Court’s power to review the actions of the other two branches and decide whether or not they’re constitutional, aka judicial review? Well, quite simply, it wouldn’t. In the immortal words of Abraham Lincoln: “A house that stands like a janky, three-legged table becomes even jankier should you kick the shit out of one of said legs.”
But Actually …
Article III establishes the Supreme Court, but it doesn’t grant it the power to review the actions of the other two branches to determine how well they jibe with the Constitution. No, the Supreme Court granted that power to itself.
It gets a bit convoluted here, but it all came about during the 1803 case of Marbury v. Madison. William Marbury had been appointed as a justice of the peace by President John Adams, but James Madison — the new secretary of state under Adams’ successor, Jefferson — refused to deliver his commission. The Supreme Court agreed that was illegal as shit, but said they couldn’t do anything about it because the law he was breaking was itself unconstitutional. With that single word, the concept of judicial review was born. As Chief Justice John Marshall put it, “It is emphatically the province and duty of the Judicial Department to say what the law is.”
While that frankly sounds a bit too Judge Dredd for our liking — and Thomas Jefferson agreed, calling judicial review a “dangerous doctrine” that could transform even the most honest judge into a despot — it’s hard to argue the overall result hasn’t been a net positive, especially for civil rights. Even if poor Marbury never did get that commission.
#4. It Doesn’t Contain The Phrase “Separation Of Church And State”
In this corner, we have your dear old Christian grandma (we know, there’s a high likelihood that your grandma’s not Christian, but for the sake of this example just submit yourself to the love of our Lord and Savior this once, for Christ’s sake). Grandma insists that we are a Christian nation that has been made all the weaker by taking the Jesus out of schools.
And in this corner, we have the person who smirkingly points out that grandma has apparently never read a little thing called the Bill of Rights. The document outlines a clear separation of church and state, a principle that’s actually getting violated every time a legislative session opens with a Christian prayer.
But Actually …
Here’s the First Amendment’s entire mention of religion, verbatim: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
That’s it. What does a law have to do before it’s considered to be “respecting an establishment of religion”? Good question! The courts are still arguing that shit more than two centuries later.
Here’s where some (brief) background helps. The reason the amendment is there is because religious minorities at the time were worried about the new federal government establishing a national religion, rendering theirs illegal. But note that several states at the time had established official state religions (where your tax dollars funded one specific denomination and you could be fined/jailed/beaten for not observing its practices). Ironically, a big issue for those states was making sure the federal government didn’t establish a different religion from the one they were forcing on their own citizens — that’s why the amendment refers only to Congress not making a law. A state or local government can establish all the religion it wants, according to that wording. Of course the Supreme Court would quickly declare that type of thing illegal, and by “quickly” we mean years later.
The point is, the issue historically has been far from clear-cut, precisely because the constitution contains no mention whatsoever of a “separation of church and state” — that phrasing would have made things much clearer. Those words actually came from an 1802 letter from Thomas Jefferson to the Danbury Baptist Association, in which he attempts to call backsies on the ultra-vague wording of the First Amendment by saying it builds “a wall of separation between church and state.” This phrase entered the national lexicon in the 1878 case of Reynolds v. United States, in which the Supreme Court ruled that Jefferson’s later clarification “may be accepted almost as an authoritative declaration of the scope and effect of the [first] amendment.” Note the words “may” and “almost.” And note that was freaking 76 years later.
Remember, at the time the Constitution was written, Jefferson was serving as the U.S. minister to France, and in fact wasn’t even one of the signers of the document. And the Supreme Court has since proven time and again that it’s not always quite so willing to concede to Jefferson’s ex post facto opinion that the separation of church and state is spelled out somewhere between the lines.
Now, if this all sounds like backhanded support for the “Christian Nation” concept, we should note here that God is mentioned precisely once in the Constitution. It’s near the end: “the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven.” That was simply the standard way of writing dates back then, because they wrote with freaking feathers and apparently enjoyed excruciating wrist pain.
So, yeah, by this point in the article you should be starting to realize the constitution is vague as hell. Which makes sense when you consider the whole thing is only around 4,500 words long, or half as long as the terms of service you agreed to when you downloaded Candy Crush. As for the next glaring omission …
#3. It Doesn’t Spell Out Who (Or What) Can Be The Speaker Of The House
The speaker of the House, like most things in politics, is self-contradicting. On the one hand, the position is the career equivalent of smashing into a roadblock: Of all the speakers in the history of speakers, only one — James K. Polk, otherwise known as “Who?” — has ever advanced to the presidency. On the other hand, it’s a position of enormous power: Should the president and vice president both gloriously go out in a tragic, simultaneous dirtbike school-bus-ramping incident, the speaker is next in line to become president.
With that kind of power at stake, surely the Constitution defines this role very meticulously, right?
But Actually …
So, what exactly does the Constitution say about this job? According to Article I, Section 2: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
And … that’s it. Typo — er, quill-o — and all. The Constitution doesn’t state that the speaker must be a member of the House, nor be bound to the same requirements for membership, such as age restrictions, citizenship, and loyalty to the U.S. government. Hell, for that matter it doesn’t state that the speaker must even be a real person, or a terrestrial, or “not a Sith Lord.” Legally, the U.S. House of Representatives could pick anybody — and we mean literally anybody — to serve as their head. And they’re third in line to run the country! The House could appoint a toddler, or a monkey, or that Tupac Shakur hologram. And they’d be one tragedy away from being the most powerful being on the planet.
#2. It Doesn’t Say Only The Federal Government Can Print Money
If any random Joe down the street could print money, we’d all be backstroking through Scrooge McDuck swimming pools overflowing with (utterly devalued) cash. Producing money is an exclusive function of the federal government, and if you disagree with that assertion The Man will gladly hook you up with a nice, rent-free, six-by-eight apartment in a country where the exclusive currency is smokes.
But Actually …
Not only does the Constitution not prohibit Joe D. Scrote from producing his own currency called Scrote Bux (it only comes in denominations of two), it also doesn’t grant the U.S. government the right to produce paper money at all. The only mention of bills in Article I is in reference to prohibiting states from issuing “bills of credit.” No similar restriction is placed on the fed, or anyone else for that matter. In fact, Article I only gives Congress the power to “coin money,” because when it was being drafted the words “paper money” got way too many breeches all up in a bunch, with Delaware Continental Congressman George Read likening foldable money to “the mark of the Beast.” (Hey, perhaps Thomas Jefferson was onto something when he said the Constitution should be rewrittenevery 19 years.)
If you’re wondering why localities haven’t taken advantage of this lack of a prohibition to produce their own currency, the answer is that they absolutely have. It’s known as scrip, and it’s quite common for communities to use it during times when “real” money is scarce, such as during the Great Depression or the Prohibition era. As a matter of fact, scrip is making a comeback — communities in Michigan, New York, North Carolina, and Massachusetts have all issued their own Depression-inspired currencies in an attempt to encourage local spending. Of course, you still have to use actual U.S. currency to buy the local currency, so it’s not like you can become scrip-rich without being regular-rich first.
Now, before you go wild with your color printer and run straight down to the local Maserati dealer, pockets overflowing with rainbow-colored Benjamins, we should make it clear that none of this in any way implies that it’s OK to produce copies of an existing currency — that is absolutely, ball-bustingly illegal. You’d likely get less jail time for outright stealing said Maserati, and at least that way you’d get a single joyride out of it first. [Ed. Note: Cracked does not condone stealing a Maserati.]
#1. It Doesn’t Establish English As The Official Language
It’s a common argument among the “tear down the mosques and erect a colossal wall along the border to keep out the White Walkers and, worse, Canadians” crowd: If an immigrant wants to come into this great country of ours and bedeck himself in the finest American flag T-shirt that Walmart has to offer, the least he can do is learn the language — that language being English, not Press 2 For Spanish, goddammit. Surely, establishing an official language was high on the Framers’ to-do list, right?
But Actually …
Not only does the United States of America not have an official language, but the Constitution never once mentions the idea. It simply didn’t occur to those writing it — not when there were more important matters at hand, like abolishing government-imposed tea times and such.
Now, it’s true that — with the obvious exception of tossing the occasional U into the Boston Harbor because we’re rebellious like that — the USA has always mostly spoken the language of our one-time overlords. So it could be argued that, by the simple act of writing the Constitution in English, the whole “official language” thing was implied. Nevertheless, attempts to correct our forefathers’ omission and make English official at a federal level have so far floundered like an American trying to order an appetizer in a French bistro.
That’s probably why tilde-hating politicians have taken the battle stateside: So far 31 states have passed laws declaring English as an official language. Before your racist Uncle Chuck jumps for joy at that statistic, however, we should highlight the “an” in that sentence. Hawaii, for example, has also declared native Hawaiian as an official language, while Alaska declared all 20 of their indigenous languages official. So, really, there’s nothing stopping a state with a significant Trekkie population from declaring Klingon official, in which case Uncle Chuck had better hope he possesses superhuman wedgie-giving abilities.