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 ...
6The Constitution Doesn't Say You Get To Vote For A President
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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.
Not a euphemism.
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.
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The words "pancake breakfast" also don't appear there, somehow.
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.
Your state can -- and should -- pick electors from the Fuck This party.
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.
5It Doesn't Say The Supreme Court Gets To Decide What's Constitutional
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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.
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They defend freedom of expression and limit executive power. And decide what is golf.
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.
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"We better not argue with them. They have hammers."
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.