Jan. 31, 2017
By Steve Berry, Esq.
The U.S. Constitution is full of odd provisions. Some have played a key role in our history, others not so much. Here are five:
1. Article I, Section 8, Paragraph 11:
The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
2. Article V:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress . . .
3. Amendment 16:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
4. Amendment 20 (Sections 1 and 3):
The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
No one provision of the Constitution specifically deals with secession, as the document is wholly silent on this point, but consider these:
- The American Revolution was not revolution. None of its stated aims included conquering London and replacing the monarchy with a democracy. Instead, the goal was to leave the British empire and fashion a government of our own. That's called secession;
- The Articles of Confederation and Perpetual Union (which is its full and proper title) were created in 1781 to be just that "a perpetual union" of the 13 colonies. Yet a mere 6 years later, delegates acting in secret in Philadelphia seceded from that "perpetual union" and adopted a new Constitution designed "to form a more perfect union." Logic would say that since the Articles of Confederation stated that they were 'perpetual,' and the new Constitution formed "a more perfect union," with no mention of the word 'perpetual,' then this new union was not intended to be forever. No where in the Constitution are the words "perpetual union" ever used;
- Three states at the time of their ratification of the Constitution (Virginia, Rhode Island, and New York) specifically reserved the right to leave the union later, if they so desired. No one objected to this reservation language;
- An 1869 Supreme Court decision, Texas v. White, declared secession unconstitutional. It's the only time the Supreme Court has directly considered the issue. But it's a horribly reasoned opinion, decided more for political reasons than legal. The author of the decision was Salmon Chase, who served in Lincoln's war cabinet. What was he going to rule? The Civil War was unconstitutional and 600,000 people died for nothing? Hardly. So the Court fashioned a contorted decision that really tells us nothing about the constitutionality of secession;
- The definitive record of what happened in Philadelphia, at the Constitutional Convention, is James Madison's Notes of Debates on the Federal Convention of 1787. Though not the official secretary, Madison kept a meticulous record, which he supposedly transcribed each evening. Other delegates kept notes, but Madison's became the most authoritative account of day-to-day deliberations. But those notes were not published until 1840. During those ensuing 53 years Madison openly admitted embellishing his remembrances, making countless emendations, deletions, and insertions. So many that it is now impossible to know what actually took place. All we have is what Madison says took place. Compounding things was Madison's refusal to allow his record to be published until all of the convention members, including himself, were dead. Which meant nobody would be left alive to contradict his account.
About the author
The preceding clauses have all been explored in New York Times and internationally best selling author Steve Berry's novels.