Roll Call, June 16, 2011
Shortly before he took the U.S. citizenship exam in 1947, eccentric Austrian mathematician Kurt Gödel sat down to read the Constitution.
A pioneer in the use of logic in higher math, Gödel grew agitated when he saw what he considered a flaw in the document, which would allow the U.S. to become a dictatorship, according to several biographers.
On the day of the exam, Gödel’s friend Albert Einstein had to help keep him from expounding his new theory to the judge and hurting his chances of becoming a citizen.
To this day, it remains a mystery what Gödel saw that upset him, but constitutional scholars say he’s not alone in finding a few flaws in the framers’ work.
“There are imperfections,” said George Washington University law professor Jonathan Turley. “The framers viewed this as an imperfect process. They were fully aware that the Constitution was a product of compromise and urgency.”
Turley and other scholars say the framers got most things right: separation of powers between three equal branches, protection of basic civil rights and an amendment process that would allow the country to fix any mistakes down the road.
But they also say there are a few quirks the framers didn’t catch — small oversights of how the new government would function that could have very real consequences.
Some are minor and haven’t caused much trouble. Others have already been addressed by constitutional amendments. And one nearly tore the country apart.
Below are a few bugs that scholars have found:
There is no way to remove a Supreme Court justice who has become disabled.
In 1878, Associate Justice Ward Hunt suffered a stroke that left him paralyzed.
Though he could no longer attend oral arguments or deliver opinions, Hunt refused to step down.
The reason: He had not been in office long enough to receive a pension.
He’s not the only one, Turley notes. There have been Supreme Court justices with severe mental illnesses, crippling drug addictions and age-related physical impairments who did not step down.
“The Constitution is silent on this problem,” Turley said.
Article III, which outlines the structure of the Supreme Court, lists no qualifications. (Justices are not even required to be lawyers, even though all have been so far.)
It says only that justices “shall hold their offices during good behavior” and that impeachment can only happen for “treason, bribery, or other high crimes and misdemeanors” — but not for disability.
In the case of Hunt, Congress eventually voted to give him a special pension if he would retire within a month. He took the deal.
Inflation has massively expanded the scope of the Seventh Amendment.
The Seventh Amendment is short and to the point: Americans have a right to a jury trial in most civil cases.
The only exception is for cases where the amount in dispute is less than $20.
It’s not easy to say how much 20 bucks in the 1790s would be worth today, but to put that in context: $20 in 1913, when the Consumer Price Index was started, is worth about $454 today.
That means the threshold for a jury trial is now radically lower than it was in the framers’ day.
Still, not everyone is convinced the amendment’s wording is a bug.
Akhil Reed Amar, author of “America’s Constitution: A Biography,” says the framers were well aware of inflation, having lived through several boom-and-bust cycles. At another time during the Constitutional Convention, they even debated pegging judges’ salaries to the price of a bushel of wheat for that very reason.
Amar argues that the framers figured more jury trials would be required in the future as the value of a dollar went down, and they were OK with that.
“It’s designed so that as the years go on, we err on the side of more jury trials,” he said.
Congress determines the size of the House of Representatives — and does not have to increase it.
The framers knew the country would grow — and made provisions for Congress to grow along with it.
The Constitution requires the federal government to conduct a census every 10 years and reapportion Congressional seats afterward.
At first, Congress increased the size of the House about once a decade. It grew from 65 in 1789 to 213 in 1821 to 325 in 1883. But starting in 1912, Congress basically stopped increasing the size of the House, leaving it at 435 members.
As a result, the average number of constituents for each Representative has grown, from about 30,000 in the 1790s to about 700,000 people today. (Incidentally, that’s about seven times the average in the lower chambers in Canada and Great Britain.)
Sean Cain, a political science professor at Loyola University New Orleans, says the framers were naive to leave the issue entirely up to lawmakers. After all, if Representatives vote for an increase, they’ll each become slightly less powerful in the new, larger House.
“There’s no incentive for them to make any change,” he said.
Cain argues that the larger size of Congressional districts forces Representatives to rely less on face-to-face contact with constituents and more on town hall meetings, social media and other formats that attract more partisan audiences.
The vice president could preside over his own impeachment hearing.
The framers saw the president of the United States as a more limited version of a king. But the vice president was a completely new idea at the time.
Perhaps as a result, the framers didn’t really think through how the office would function.
Eugene Volokh, law professor at the University of California, Los Angeles, says there were several quirks in the vice presidency.
At first, the vice president was simply the runner-up in the presidential ballot. Because U.S. political parties didn’t exist at the time, the framers didn’t realize that could be awkward. (Imagine Vice President John McCain serving under President Barack Obama.)
They also didn’t differentiate between votes cast for president and vice president, leading to the debacle of the election of 1800, which could have led to vice presidential candidate Aaron Burr being elected president.
Those bugs were fixed by the 12th Amendment, which was added to the Constitution in 1804.
But Volokh notes another one remains unaddressed.
One of the jobs of the vice president is to preside over the Senate, except when it is debating the impeachment of the president. To avoid a conflict of interest, the Constitution specifies that the Chief Justice of the United States presides over impeachment trials of the president.
But it says nothing about the impeachment of the vice president, meaning, in theory, the vice president would still preside.
Volokh says it’s unlikely the Senate would let that happen, but it would still be messy.
“This is a time when you would want all the rules to be set,” he said. “You would not want to have a debate about that in the midst of a constitutional crisis.”
Slaves were counted as three-fifths of a person when determining the size of Congress.
The framers knew what they were doing when they decided to count slaves as three-fifths of a person when determining the size of Congress.
Slave-holding states in the South would not have signed off on the Constitution if it gave too much power to the North, for fear that the new Congress would simply outlaw slavery.
And Northern states would not have agreed to count each slave as a full person and give too much power to the South.
But Amar argues that the resulting compromise gave too much power to the South anyway, making it impossible to gradually eliminate slavery in a peaceful way and setting the country on the path to war.
Because slave-holding states controlled more seats in Congress, they also held more Electoral College votes, helping elect presidents from slave-holding states. Those presidents then appointed judges who were sympathetic to the institution.
Amar believes the North could have struck a different deal — perhaps giving Southern states more seats up front but gradually reducing the amount over time. But the three-fifths compromise was too rigid, and once it was in place, it could not be undone.
More than anything, Amar says, the three-fifths compromise shows the Constitution is not perfect.
“It failed,” he said. “We call that failure the Civil War.”
© Roll Call, 2011. Used with permission.
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