# Wacky Congressional/Constitutional loopholes... Are they technically correct? **URL:** \ **Category:** Factual Questions\ **Created:** [January 18, 2011, 1:06am UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026 "2011-01-18T01:06:54Z")\ **Posts on this page:** 16\ **Page:** 2
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [January 18, 2011, 6:09pm UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/21 "2011-01-18T18:09:20Z")
A significant legal theory of Texas v White dealt with this. In the preamble of the Articles of Confederation state that it is a > [@](#): > > perpetual Union between the States of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia. yet in effect, nine states seceded form the United States of America to form the United States of America under the Constitution. Chief Justice Chase claimed that under the Constitution, “a more perfect Union” would be one that a state could not unilaterally seceed from like they could under the mere “perpetual Union” of the AoC. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 18, 2011, 6:12pm UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/22 "2011-01-18T18:12:07Z")
> [@CC](#): > > Speaking of strange things included in the Constitution, I’ve always wondered about Article VII, ratification. How could the Constitution, which was not yet in effect, determine how itself would be ratified? If it wasn’t yet law, how did it have any power? Sovereignty is self-generating. You could just as equally argue that the Declaration of Indendence was not legally binding because only an act of the British Parliament had the authority to free any British colonies. But the colonies, be declaring their independence, were also declaring that they were no longer subject to Parliamentary authority. Same thing with the Constitution. It was not legally enacted under the terms of the Articles of Confederation. But by enacting the Constitution, the United States also declared that it was no longer bound by the Articles of Confederation. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [January 18, 2011, 6:34pm UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/23 "2011-01-18T18:34:17Z")
> [@Giles](#): > > Even if they lacked full sovereignty, they still had enough to enter into multilateral agreements – and still do. So, for example, if the 13 original states wanted now to set up an “Original States Commemoration Co-operative”, they could send delegates to a meeting in Philadelphia, those delegates could draft an agreement setting up OSCC, and the agreement could include a ratification clause saying that it became effective when ratified by legislatures of 9 of the 13 states. That ratification would be binding on the states ratifying the agreement, and not on the other states. Would that be unconstitutional under Article One, Section Ten, Clause Three which says “No state shall (…)enter into any Agreement or Compact with another State,”? Or, given the military context of clause three, is that referring just to military alliances or treaties? How about Clause One which says “No State shall enter into any Treaty, Alliance, or Confederation”? ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [January 18, 2011, 6:36pm UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/24 "2011-01-18T18:36:39Z")
> [@Little\_Nemo](#): > > Sovereignty is self-generating. You could just as equally argue that the Declaration of Indendence was not legally binding because only an act of the British Parliament had the authority to free any British colonies. But the colonies, be declaring their independence, were also declaring that they were no longer subject to Parliamentary authority. Ah, the term “sovereign”. Such a wonderfully compact way of saying “We have the power to tell you to go to the Devil”. 😃 ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [January 18, 2011, 6:45pm UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/25 "2011-01-18T18:45:45Z")
> [@Lumpy](#): > > Would that be unconstitutional under Article One, Section Ten, Clause Three which says “No state shall (…)enter into any Agreement or Compact with another State,”? Or, given the military context of clause three, is that referring just to military alliances or treaties? How about Clause One which says “No State shall enter into any Treaty, Alliance, or Confederation”? Well, there are real-life organisations set up by interstate agreement, e.g., the [Port Authority of New York and New Jersey](http://en.wikipedia.org/wiki/Port_Authority_of_New_York_and_New_Jersey). Would that offend Article 1, Section 10? Or did the Congress of the U.S. give permission for the Port Authority to be set up? ---
**Author:** ![Saltire](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saltire/32/553_2.png) [@Saltire](https://boards.straightdope.com/u/Saltire)\ **Post date:** [January 18, 2011, 6:48pm UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/26 "2011-01-18T18:48:56Z")
The short-lived TV series _Commander in Chief_ had an episode plot that touched on number one. The Vice President had recently resigned, and the President had to have surgery for appendicitis. The administration sent paperwork to the Speaker to waive the temporary elevation to President, so that the President Pro Tem of the Senate could take over while the POTUS was under anesthesia. They assumed he’d waive because to be President he’d have to resign from his seat in the House. (It wasn’t made clear why this didn’t apply or matter to the Pro Tem.) To their surprise, he did resign and took over the Oval Office for about a day, since he was going to resign soon anyhow to run for President. However, when he resigned his seat and therefore lost his ability to vote in the House, he was still the Speaker. I know TV shows aren’t usually legally accurate, but I found it interesting, having just watched the whole series on Hulu. ---
**Author:** ![etv78](https://avatars.discourse-cdn.com/v4/letter/e/d78d45/32.png) [@etv78](https://boards.straightdope.com/u/etv78)\ **Post date:** [January 18, 2011, 8:55pm UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/27 "2011-01-18T20:55:00Z")
> [@Lemur866](#): > > Under the US system, the equivalent would be cabinet members, who are rarely sitting elected officials. most of Obama’s Cabinet were either Senators or Governors. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [January 18, 2011, 9:39pm UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/28 "2011-01-18T21:39:06Z")
But they all resigned those elected posts to serve on the cabinet. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [January 18, 2011, 10:41pm UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/29 "2011-01-18T22:41:02Z")
Senators have to resign, though, but a governor could legally serve in the Cabinet even while staying on as Governor (assuming state law doesn’t prohibit it). I’m basing that on a clause in Article 1, Section 6: > [@](#): > > no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office. I’m not sure if this has ever gone to court, but history counts a position in the executive branch as an office under the United States, i.e. a federal office. Governors are state offices. They are not held back by this provision, although they always do resign. The Founders didn’t go through every possibility of every loophole and account for it. They expected certain behaviors. And most of the time those behaviors have indeed been held to. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [January 18, 2011, 10:43pm UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/30 "2011-01-18T22:43:38Z")
> [@Exapno\_Mapcase](#): > > Senators have to resign, though, but a governor could legally serve in the Cabinet even while staying on as Governor (assuming state law doesn’t prohibit it). Such as this provision of the Ohio constitution: > [@](#): > > **§ 3.14 Who is ineligible for governor** > > ``` > No member of congress, or other person holding office under the authority of this state, or of the United States, shall execute the office of governor, except as herein provided. > > ``` ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [January 19, 2011, 12:50am UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/31 "2011-01-19T00:50:16Z")
> [@acsenray](#): > > Such as this provision of the Ohio constitution: > > , except as herein provided. Just out of curiosity, what if anything is herein provided? ---
**Author:** ![qazwart](https://avatars.discourse-cdn.com/v4/letter/q/5fc32e/32.png) [@qazwart](https://boards.straightdope.com/u/qazwart)\ **Post date:** [January 19, 2011, 1:34am UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/32 "2011-01-19T01:34:49Z")
> [@CC](#): > > Speaking of strange things included in the Constitution, I’ve always wondered about Article VII, ratification. How could the Constitution, which was not yet in effect, determine how itself would be ratified? If it wasn’t yet law, how did it have any power? (When I asked this question in school, many, MANY years ago, my teacher didn’t understand my question, and I’ve been confused about it ever since.) This was really a stinker of a clause… According the the Articles of Confederation: Article XIII. Every State shall abide by the determination of the united States in congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this confederation shall be inviolably observed by every State, and _ **the union shall be perpetual** _; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a congress of the united States, and be afterwards _ **confirmed by the legislatures of every State** _. So, officially for the Constitution to be passed, it has to be passed by the Congress of the Articles of Confederation, then by the legislature of all 13 states. You cannot pull out of the Articles of Confederation and start using the Constitution. However, the Confederation Congress never approved the Constitution, and the Constitution was never submitted to the legislatures of the various states. Instead, it was done by convention bypassing the state governments. And, only 9 of the 13 states had to approve it in order to take effect. This was done on purpose. The backers of the Constitution knew that getting all states to agree would be almost impossible. However, if nine of the thirteen states agreed, what would the other four do – especially if the nine consist of the largest states? And, by bypassing the state legislatures, the backers of the Constitution hoped for two things: 1). a stronger political connection to the individual Americans, and 2). the hope they’d have more influence over a convention than the legislature of the individual states. The authors worried that the legislatures would simply vote down the Constitution because it would give the national government too much power. However, they felt it would be easy to create enough political pressure to call conventions, and that they would have enough influence in selecting the delegates and over the convention to push for approval. It’s why our Bill of Rights are all amendments. During the conventions, many people worried over specific things the Constitution stated and the backers of the Constitution promised that they would support certain amendments in the form of a Bill of Rights if the Constitution was passed. The politics behind the Constitutional Convention and the battle for its passage are very interesting. In fact, much of this was the work of a certain General George Washington who not only was the one who helped organize the Constitutional Convention, but was also the presiding officer of the Constitutional Convention. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 19, 2011, 4:17am UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/33 "2011-01-19T04:17:46Z")
> [@Exapno\_Mapcase](#): > > Senators have to resign, though, but a governor could legally serve in the Cabinet even while staying on as Governor (assuming state law doesn’t prohibit it). There’s also the precedents of John Jay and John Marshall, who both served simultaneously\* as Chief Justice and Secretary of State. \*To clear up any confusion, the two men did not serve at the same time. They each, during different periods, served simultaneously in both posts. ---
**Author:** ![AlsoNamedBort](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alsonamedbort/32/3213_2.png) [@AlsoNamedBort](https://boards.straightdope.com/u/AlsoNamedBort)\ **Post date:** [January 19, 2011, 4:30am UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/34 "2011-01-19T04:30:27Z")
> [@Little\_Nemo](#): > > \*To clear up any confusion, the two men did not serve at the same time. They each, during different periods, served simultaneously in both posts. I just thought of a great idea for a sitcom. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [January 19, 2011, 4:45am UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/35 "2011-01-19T04:45:17Z")
> [@Little\_Nemo](#): > > Here’s an interesting one I once heard. Suppose Congress decides that the Supreme Court is abusing its authority and thwarting the will of the legislature. So Congress passes a law saying that a two thirds majority of the Supreme Court is required to overturn any law passed by Congress. (The Constitution doesn’t say anything on the subject and there are precedents for supermajorities.) > > The justices are naturally upset and in a 5-4 decision they rule that the new law is unconstitutional and overturn it. > > So is the law in effect or not? According to the law, the Court requires a 6-3 majority to overturn a law. According to the Court, that law was invalid so they only require a 5-4 majority to overturn a law. Since judicial review is a wholly judge-made power to begin with, I suspect that the Court would have no trouble finding that Congress lacks the power to restrict it. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [January 19, 2011, 6:19am UTC](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026/36 "2011-01-19T06:19:19Z")
> [@Tom\_Tildrum](#): > > Since judicial review is a wholly judge-made power to begin with, I suspect that the Court would have no trouble finding that Congress lacks the power to restrict it. Technically judicial review wasn’t made up by John Marshall. The concept already existed. His original contribution was to assume that power for the Supreme Court, although in a fairly passive fashion. It was Roger Taney who really established the modern principle of judicial review. But the issue isn’t whether or not the Court now has the power of judicial review (that train has left the station). The issue in the situation I described would be whether or not a 5-4 majority is a sufficient majority to overturn. [Previous page](https://boards.straightdope.com/t/wacky-congressional-constitutional-loopholes-are-they-technically-correct/568026.md?page=1)