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PART 7: Changing the Constitution—Together with an Explanation of the Amendments Added Since 1791 - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


PART 7

Changing the Constitution—Together with an Explanation of the Amendments Added Since 1791

POINTS TO REMEMBER

1. The Constitution may be changed formally by amendment, but it also changes as a result of custom, practice, and judicial decisions.

2. Not all constitutional change has the same impact on the distribution of power. Some changes are supplementary in nature and merely refine or clarify a particular provision of the Constitution, while other changes are revisionary and truly alter the basic design of the system.

3. The difficulty of the amendment process assures evolutionary change; the extraordinary or “super majority” requirement assures democratic change that protects the States and sectional interests; the amendment procedure strengthens federalism by giving the States the final say as to whether an amendment should pass or fail. Ironically, most amendments added since 1791 have reduced the power of the States. One of the most far-reaching constitutional changes effected without a clearly authorizing amendment has been the nationalization of the Bill of Rights through the Doctrine of Incorporation.

4. The amendment process recognizes the sovereign right of the American people and the States to change their Constitution or even their form of government. A large share of the amendments that have been introduced over the years have sought to constitutionalize mere legislation and are otherwise inappropriate. There are many inherent limitations to the amendment power.

Though its flow is continuous, the Mississippi River has often changed direction. Its main channel of movement has shifted at times. Its current may be fast or sluggish. Precisely similar are the dynamics of the American Constitution. Throughout its history, the Constitution, as interpreted and applied by each generation, has changed almost without interruption. The Constitution today is different in many respects from the Constitution of 1787. A mere reading of the document itself, without consulting Supreme Court opinions, the history books, legal treatises, and other extrinsic aids, would give the student not only a meager understanding of what the Constitution meant in 1787 but in many ways a misunderstanding of what it means today.

Why, it may be asked, should the Constitution change at all? Does it not prescribe a fixed code of conduct for public officials? Does it not represent the “permanent will” of the American people? These questions may be answered in the affirmative, but our response requires some elaboration. It must be borne in mind that political societies, especially in advanced countries like the United States, are not static. Change is inevitable. Society must change—and slow change, we might add, is the means of its preservation, like the human body’s perpetual renewal. If society changes, so too must its constitution, lest it fall by the wayside as an outmoded relic of the past. The Framers of the American Constitution understood this. That is why they wrote Article V into the Constitution, which sets forth the procedure to be followed for amending the Constitution.

Our Living Constitution

Formal amendments to the Constitution, however, are only one method of change. Constitutions may also change by subtle and informal means, as a result of changing political practices, new technology, and other forces. Most changes of this nature are supplementary rather than revisionary, and may be seen as additions to, or refinements of, a particular provision of the Constitution, not as alterations of the structure itself. Thus, as a result of political experience, presidential electors, as we saw earlier, no longer function as the Framers imagined they would; yet in other respects the Electoral College still functions as intended. Although the Constitution is silent on the qualifications for office of Supreme Court Justices, all members appointed to the Court have, by custom, been lawyers. Likewise, political parties were not anticipated by the Framers and no provision was made for them in the Constitution. Since the earliest days of the American republic, however, political parties have played a fundamental role in our political system, so fundamental, in fact, that it might be said they are an integral part of our constitutional system because it is through our party system that political power is organized, exercised, and transferred from one election to the next. The Constitution has nevertheless accommodated political parties without amendment. The same can be said of the President’s cabinet, which is almost entirely the result of custom.

Similarly, the authors of the First Amendment did not foresee motion pictures, radio, or television. They knew only direct verbal communication and the printed word. The extension of the right of freedom of speech and press to a radio news broadcast has not altered the meaning of these freedoms, however, or required a revision of the First Amendment. It has merely changed the scope of the Amendment. The principle of free speech remains the same.

Legislation passed by Congress may also be of such a basic nature as to supplement the Constitution and give added meaning to its provisions. We have already noted the significance of the Judiciary Act of 1789, which has become virtually a permanent fixture of the American political system. The Constitution authorizes Congress to determine who shall be President in the event that both the President and the Vice President should be removed from office or be unable to serve because of death, incapacity, or resignation. By the Presidential Succession Act of 1947 Congress has provided that first the Speaker of the House, then the President Pro Tem of the Senate, and then cabinet heads should become President, in that order, if such a contingency should arise. Also, the Constitution nowhere prescribes the precise manner by which inferior officers are to be selected. Article II, Section 2 merely states that their appointment may be vested in the President alone, in the courts of law, or in the heads of departments. In 1883, however, Congress passed the Pendleton Act, which provided for the establishment of a Civil Service Commission and the recruitment and hiring of thousands of Federal employees on the basis of ratings derived from competitive examinations. That civil service system is still in place, influencing the manner in which the Federal government functions. But no amendment was needed to establish it.

Judicial opinions of the Supreme Court provide still another means for embellishing the original text of the Constitution—Article II, Section 3 provides, for example, that the President “shall take care that the laws be faithfully executed.” Does this mean that the President’s duty is limited to the enforcement of acts of Congress according to their express terms? The Supreme Court was called upon to provide an answer to this question in the bizarre case of In Re Neagle (1890). The case grew out of a dispute between Justice Stephen J. Field, a member of the Supreme Court, and David Terry, who had once been Chief Justice of the California Supreme Court. While presiding over a Federal circuit court in California in a suit involving Terry’s wife, Justice Field criticized the lady’s moral character during the course of the trial. Mrs. Terry began screaming insults, and Field ordered her removal from the courtroom. David Terry, her lawyer as well as her husband, became so enraged that he felled with one blow the deputy who was trying to carry out Field’s order, knocking him unconscious.

Field later returned to Washington, and Terry began a campaign of vilification against Field, threatening to kill him. A headstrong southern gentleman who had once killed a friend of Field’s in a duel over a question of honor, Terry had a reputation for violence. He often wore a six-shooter on his hip, and Mrs. Terry also frequently carried a pistol. Alarmed by these events, the Attorney General of the United States assigned a deputy marshal named David Neagle to protect Justice Field while out west on circuit duties. By coincidence, Field and Neagle ran into Terry in a railroad restaurant in a small town. Upon sight of Field, Terry leaped from his table and struck Field twice. Believing Terry was reaching for a gun, Neagle drew his own weapon and shot Terry dead. There was strong local sentiment for Terry, and Neagle was arrested by State authorities on a charge of murder.

A Federal circuit court issued a writ of habeas corpus for Neagle’s release under a Federal statute which made the writ available to one “in custody for an act done or omitted in pursuance of a law of the United States.” The problem was that Congress had not enacted any law authorizing the President or his Attorney General to assign marshals as bodyguards to Federal judges. The Supreme Court ruled nevertheless in favor of Neagle, arguing that no statute was necessary. “In the view we take of the Constitution,” said the Court, “any obligation fairly and properly inferrible from that instrument, or any duty of the marshal to be derived from the general scope of his duties under the laws of the United States, is a ‘law’ within the meaning of this phrase.” There is “a peace of the United States,” the Court went on, and the President is necessarily the principal protector of the peace. His duty to see that the laws are faithfully executed is not limited to enforcing Congressional statutes and includes as well “the rights, duties and obligations growing out of the Constitution itself.” The President’s power to execute the laws, in other words, was a self-executing power to enforce the laws generally, and did not depend for its existence upon a specific act of Congress. The Neagle case, it may thus be seen, gave added meaning to the separation of powers and the President’s law enforcement powers, without substantially altering them. Had the Court ruled against Neagle, the President’s power would have been severely restricted and entirely at the mercy of Congress.

There are many Supreme Court decisions comparable to the Neagle case in which the Justices have found it necessary to add meaning to general provisions of the Constitution when applying them to specific facts. Ordinarily, such decisions arouse little controversy. The Constitution, after all, is based upon general principles as well as concrete rules, and it would be impossible for the judges to interpret and apply these principles without specifying their metes and bounds. Unlike the draftsmen of many tedious State constitutions that go on for pages and attempt to anticipate every possible contingency, the Framers wisely understood that a constitution is not an elaborate code of law and that it would soon be unwieldy and might go out of date if the principles of government embodied within it were burdened with countless details. A constitution must be adaptable to the changing needs and conditions of society. As Chief Justice John Marshall explained in the famous case of McCulloch v. Maryland (1819), in which the Court rendered a definitive interpretation of the Necessary and Proper Clause, “a constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. … [I]t may with great reason be contended, that a government entrusted with such ample powers … must also be entrusted with ample means for their execution. The power being given, it is in the interest of the nation to facilitate its execution.”

Our Changing Constitution

The accumulation of customs and usages that impinge upon the Constitution, and the actions of Congress, the President, and the Supreme Court that give meaning and substance to the powers that are granted and denied, form the basis of American constitutional law. In essence, such developments do not so much change the Constitution as they apply and refine it. The line between actual change and mere implementation cannot always be clearly drawn, of course, but we may take it as a general proposition that a grant of power carries with it, as Marshall contended, the means for its execution. Thus in Gibbons v. Ogden (1824), the great steamboat monopoly case involving the scope of the commerce power, Marshall argued persuasively that, inasmuch as Congress was authorized to regulate commerce, it followed that Congress must also be permitted to control the means, or the environment in which commerce moved, including navigation, “so far as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or among the several States, or with Indian tribes.’ ”

More troublesome and difficult to justify, however, are actions of the Federal and State governments that actually create power, alter the distribution or division of power, or otherwise redefine the general principles or specific provisions of the Constitution. Such changes, in the absence of an authorizing amendment to the Constitution, raise serious questions of legitimacy because they change the “rules of the game” and the basic structure of government. Because they also conflict with the “permanent will” of the American people, they play havoc with the underlying republican principle of the Constitution and the democratic foundation upon which it rests.

Examples of these substantive constitutional changes abound, and no branch of the Federal government is entirely innocent of the charge of over-reaching. Broad delegations of legislative power to executive agencies and independent regulatory commissions, as we previously saw, tend to undermine the separation of powers and democratic accountability. The unrestricted extension of the commerce clause into purely local affairs has changed the meaning of federalism. This is amply demonstrated by U.S. v. Appalachian Electric Power Co. (1940). In this case, the Supreme Court held that Congress’s commerce power extended not only to navigable streams, but also to the whitewater rapids of the New River in West Virginia, on the theory that the river was navigable because it was capable of being made navigable at some future date. By means of this decision, much State power over local waterways, flood control, hydroelectric power, and watershed projects has been transferred to the Federal government. This represents an expansion of Federal power, not simply an application of a general power to regulate commerce among the States.

The expanded use of executive agreements since the 1930s, substantially increasing the power of the President in foreign affairs, represents yet another extension of power. Instead of making treaties, which require Senate approval, modern Presidents have relied increasingly on privately negotiated settlements with foreign governments, known as executive agreements. Although the Senate is bypassed and is thus denied an opportunity to fulfill its “advice and consent” obligations under Article II, Section 2, executive agreements are nevertheless regarded as having the same force of law as formal treaties. The conclusion seems unavoidable that the widespread use of these executive devices has resulted in a transformation of the Senate’s role in foreign affairs.

Among the various constitutional changes that have occurred as a result of Supreme Court rulings, the Court’s rule of interpretation known as the Doctrine of Incorporation has probably produced the most far-reaching reallocations of power. In our earlier discussion of the Bill of Rights, we noted that one of its principal objectives was to preserve intact State bills of rights under the new Constitution, and to protect the right of the States to define the scope and content of civil liberties in disputes between a State and its citizens. In Barron v. Baltimore (1833), a unanimous Supreme Court, speaking through Chief Justice Marshall, held that no provision of the Bill of Rights applied to the States.

Beginning in 1925 in the case of Gitlow v. New York, however, the Court initiated a series of decisions that resulted in the nationalization of the Bill of Rights. By 1947, every provision of the First Amendment had been made applicable to the States, and in the 1960s most provisions of the Bill of Rights protecting Federal criminal defendants were also applied to State proceedings. The vehicle used to accomplish this result was the Due Process Clause of the Fourteenth Amendment, which provides that, “No State shall deny any person life, liberty or property without due process of law.” Focusing on the word “liberty” in the clause, the Supreme Court expanded it to include various provisions of the Bill of Rights, thereby making the restrictions against the Federal government in the Bill of Rights applicable to the States through the Fourteenth Amendment. In this way, for example, freedom of the press was incorporated into the word “liberty” of the Fourteenth Amendment, thereby giving the Federal judiciary the final say on the scope and meaning of this freedom at both the State and Federal level through its power of judicial review.

Aside from the fact that the Doctrine of Incorporation has considerably enhanced the power of the Supreme Court and brought about a significant shift of power from the State to the national courts, this interpretive device has also resulted in extensive changes of the liberties themselves. Thus before the Supreme Court first applied the Establishment Clause of the First Amendment to the States in the landmark case of Everson v. Board of Education (1947), it was a common practice in many States to encourage religion and promote religious morality. Since 1947, however, the Supreme Court has held that almost any aid of any kind to religion constitutes an unconstitutional establishment of religion. This includes voluntary, nondenominational prayers in the public schools, which have been outlawed since 1962 as a result of Engel v. Vitale (the New York Prayer Case).

Many constitutional scholars question whether the Framers and backers of the Fourteenth Amendment intended by its provisions to abolish the federalism of the Bill of Rights and overturn Barron v. Baltimore, and the Doctrine of Incorporation has therefore engendered widespread criticism, even among members of the Federal Judiciary. Whatever its merits, the Doctrine of Incorporation represents a drastic transformation of power that serves to illustrate one of the ways in which the Constitution is changed without a clear mandate from the people and the States through the amendment process.

In his Commentaries on the Constitution, Joseph Story condemned judge-made law and cautioned against the use of interpretive techniques that change the meaning of the Constitution. The two greatest excesses of constitutional construction to be avoided, he advised, are excessively narrow and excessively broad interpretations, either of which can distort the intent of the Framers and rob the people of their Constitution. Taken to extremes, restrictions on the powers of government can make it difficult or impossible for government to function. Moreover, a power of government should not be restricted solely because it is susceptible of abuse. “Every power,” he observed, “however limited, as well as broad, is in its own nature susceptible of abuse. No Constitution can provide safeguards against it. Confidence must be reposed somewhere, and in free governments the ordinary securities against abuse are found in the responsibility of the rulers to the people, and in the just exercise of their elective franchise, and ultimately in the sovereign power of change.”

No less injurious to the public good are free and uninhibited interpretations in the name of expediency. Judges, wrote Story, should not “enlarge the construction of a given power beyond the fair scope of its terms merely because the restriction is inconvenient, impolitic, or even mischievous. If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment. … Arguments drawn from impolicy or inconvenience ought here to have no weight. … Men on such subjects complexionally differ from each other. The same men differ from themselves at different times. Temporary delusions, prejudices, excitements, and objects have irresistible influence in mere questions of policy. And the policy of one age may ill suit the wishes or policy of another. The Constitution is not to be subject to such fluctuations. It is to have a fixed, uniform, permanent construction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, today, and forever.” That we have not fully lived up to these high standards and ideals of constitutional interpretation does not compel us to renounce them as unrealistic or false, but to recognize the frailty of constitutional government, the need for constant vigilance, and the primacy of the amending process as a device for protecting the constitution from unauthorized, illegitimate alterations of the basic design.

Amending the Constitution

“We must all obey the great law of change,” declared Edmund Burke. “It is the most powerful law of nature, and the means perhaps of its conservation. All we can do, and that human wisdom can do, is to provide that the change shall proceed by insensible degrees.” Like Burke, the Framers of the Constitution understood that not all change is reform. A constitution cannot long endure if it may be amended too easily or too swiftly. Nor can it be expected to survive if it cannot be changed at all; for a constitution cannot be preserved if it cannot be altered to correct errors in the document or meet the needs of society. The Articles of Confederation were probably doomed from the start because they required the unanimous consent of the States before any change could be made.

The procedures to be followed for amending the Constitution, as we noted in our discussion of federalism, are laid out in Article V. The Framers believed that the method adopted was a vast improvement over that prescribed by the Articles because it achieved a balance between permanency and change and thus assured the continuity of the Constitution. “The mode preferred by the convention,” observed Publius in Federalist No. 43, “seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.” Another virtue of the method selected, he added, is that it “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by experience on one side, or on the other.”

Both Congress and the States may initiate amendments, but only the States may ratify them. An amendment can be proposed by a two-thirds vote of both houses of Congress or by a national convention called by Congress at the request of the legislatures of two-thirds of the States. Once an amendment has been proposed, it must be ratified by the legislatures of three-fourths of the States or by a special convention of three-fourths of the States. Congress decides which method of ratification is to be followed and may specify the length of time in which the amendment must be ratified. Except for the Twenty-First Amendment, which repealed the Eighteenth, every amendment added to the Constitution has been ratified by the State legislatures. Now that there are fifty States in the Union, no amendment can take effect unless thirty-eight States approve it. The President, it should be emphasized, plays no role in the amendment process. He may not propose amendments, and those that Congress proposes are not submitted to the President for signature. This has not prevented certain Presidents, however, from persuading a member of Congress to introduce an amendment that reflects the President’s wishes. In 1865, the proposed Thirteenth Amendment outlawing slavery was mistakenly submitted to President Lincoln and inadvertently signed by him.

The amendment process, as briefly outlined here, seems rather simple and straightforward. Upon closer inspection, however, we observe that it embraces a democratic theory of government and reaffirms basic principles of the American constitutional system.

First, it may be seen that the method of amendment reflects a certain philosophy of change. By requiring extraordinary rather than simple majorities, it prefers evolutionary to revolutionary change and establishes a cumbersome system that is intended to make the amendment process slow and difficult. The purpose is not to prevent change but to encourage careful deliberation, and to discourage hasty, ill-conceived, and sweeping alterations of the fundamental law by weak, impassioned, and transient majorities. In other words, it seeks to minimize the risks and uncertainties of change. Moreover, it guards against wholesale constitutional reform at breakneck speed that might so convulse the society as to produce turbulent disorder and revolutionary upheaval.

Second, the amendment process protects the States against each other and poses a barrier to sectional privilege and discrimination that might threaten the Union. Although some Anti-Federalists were critical of the extraordinary majority requirement on the ground that it was “undemocratic,” the Framers understood that the two-thirds and three-fourths rules were necessary to prevent a simple majority of the States, with possibly only a minority of the population, from “ganging up” on a minority of the States, with possibly a majority of the population. The arrangement agreed upon offers some assurance that public support for change will be strong and deliberate, and that it will be based on a national rather than a regional consensus. In these respects, the method of amendment is analogous to the Electoral College system, which encourages presidential candidates to campaign nationally and construct a national consensus in the race for the presidency.

Third, the method for amending the Constitution acknowledges the sovereignty of the States and strengthens the principle of federalism. If there is to be a formal change of the system, the States play a commanding role. In fact, they have the last word and in this respect exercise sovereignty over the nation. If Congress chooses not to propose an amendment, the States may even initiate an amendment of their own by the convention method, ratify it on their own authority, and circumvent the Congress.

Every amendment that has been added thus far, however, was proposed by Congress, and the States have never taken advantage of the convention option. The Constitution asserts that, in the event the States call for a convention, Congress “shall” comply. But as a practical matter there is no way to force Congress to act, and it would seem in this instance—as in many others—that the Framers relied upon the good faith of Congress for the observance of this requirement. If Congress were to call a convention, it would be appropriate for Congress to enact legislation providing for the organization and procedure of a convention—a step the Congress has yet to take.

Because the Constitution sets forth no rules or standards for the conduct of such a convention, there is some uncertainty about its possible composition and scope of authority. Some observers wary of the convention method have argued that it is a risky alternative because such a convention, once called, might become a “runaway” assembly bent upon rewriting the entire Constitution. Others contend, however, that this is a phantom danger because Congress would insist upon instructing the delegates to limit their consideration to a single amendment proposal and would be free to reject other amendments that might arise from the convention. In other words, the chance of a “runaway” convention is slim or nonexistent, according to this view, because it could not succeed unless the Congress was equally supportive of a wholesale revision of the Constitution. This is highly unlikely, it is further argued, given the deep and abiding affection for the Constitution among the American people.

These matters aside, the convention method has also been advocated on the ground that it is an effective political tool of the States for pressuring Congress into proposing amendments, the assumption being that, once the requisite number of States had called for a convention, Congress would be inclined to step in to take control of the process. By proposing the amendment itself, Congress would thereby eliminate the need for a convention, and the question of a “runaway” convention would be moot. All of this is speculative, however, and the course of action that might be taken in the event a convention is called cannot be known with certainty until it happens.

Fourth, the method of amendment in Article V recognizes and confirms the republican principle upon which the Constitution is based. Although the States, in their sovereign capacity, make the final decision on whether to ratify or reject an amendment, they act not alone but through representatives of the people. It is, then, the people in the several States, speaking through their elected representatives (or their convention delegates), who possess the ultimate authority to amend the Constitution.

The Limits of the Amending Power

Moreover, the Constitution implicitly acknowledges the right of the people and the States to add whatever amendment they desire, the only exception being that they cannot amend the Constitution so as to deprive a State of equal representation in the Senate without its consent. Article V also banned amendments before 1808 dealing with the importation and taxation of slaves, but this exception has obviously expired. Although there are no other words of limitation in Article V concerning the nature and substance of an amendment, parties opposed to certain amendments over the years have argued that an amendment which subverts or destroys a basic principle of the Constitution is itself unconstitutional. The Nineteenth Amendment granting women the right to vote, for example, was challenged on the ground that a State which had rejected the Amendment would be deprived of its equal suffrage in the Senate because its Senators would be persons not of its choosing—that is, persons chosen by the voters whom the State itself had not authorized to vote for senators. This was an ingenious argument, perhaps, but the Supreme Court was not persuaded. Strictly speaking, an amendment to the Constitution is part of the Constitution itself. It is therefore inherently incapable of being unconstitutional. An amendment may nevertheless violate the spirit of the Constitution, overthrow established principles of the system, and so drastically alter the structure as to create a new form of government. Thus an amendment abolishing the States or the separation of powers, though constitutional in a legal sense, would in reality be destructive of the American constitutional system as we know it. Even foolish amendments, however, are constitutional, and it is the prerogative of the American people under Article V to make fools of themselves and to abolish their form of government and replace it with a new system if that is their wish.

Fortunately, the Constitution has always enjoyed the overwhelming support of the American people, and such revolutionary amendments have never been seriously considered. A more direct and continuing threat to the Constitution is the frivolous amendment, that is, legislation presented in the guise of an amendment. Throughout American history, members of Congress have routinely offered amendments to the Constitution that are designed simply to implement a particular public policy. In the case of the Eighteenth Amendment, which outlawed the manufacture and sale of intoxicating liquor, they actually succeeded. The subsequent repeal of this amendment illustrates the wisdom of an old political maxim that is sometimes forgotten: when it is not necessary to amend the Constitution, it is necessary not to amend it. The distillation and distribution of spirituous beverages could have been prevented by ordinary legislation, and there was therefore no need for the amendment in the first place.

No less threatening to the integrity of the Constitution is the tendency of legislators to introduce formal amendments for the purpose of reversing a recent Supreme Court decision. The amendment process, however, was intended to correct errors in the original document and to adjust the Constitution to a changing world, not as a device for controlling the Court. Unless the Court’s decision is a formidable one substantially altering the distribution of power and the bedrock principles of the system, an amendment to overturn a particular case may well be an abuse of the amendment process. Ordinary legislation, such as the withdrawal of jurisdiction, should be considered if it can accomplish the same objective as an amendment. Whether an undesirable judicial decision should be corrected by an amendment or by a statute depends, however, on the nature of the case and its constitutional impact. If the amendment is too narrowly drawn, there is the added difficulty that, even if adopted, it may fail to cure the cause of the problem. Constitutional amendments, in other words, should be viewed as a last resort, not as the only recourse; and certainly they should not be used for light or transient reasons. For once they become part of the Constitution, for better or for worse, they acquire permanency of a sort and cannot easily be corrected, improved, or removed.

The fact that the people in the several States have amended the Constitution only seventeen times since 1791, when the Bill of Rights was adopted, is testimony to the wisdom and genius of the Framers. Two of the seventeen amendments—the Eighteenth and the Twenty-First— cancel each other out because the latter repealed the former. This leaves only fifteen during a period of two centuries. At least half of these reduce the powers of the States. Half of them also expand the suffrage. By contrast, only one amendment—the Eleventh—reduces the powers of the Federal government, and only four—the Eleventh, Fourteenth, Sixteenth, and Twenty-Sixth—overturn a Supreme Court decision. The States, it would seem, have contributed noticeably to the growth of Federal power either by accepting amendments that reduce their powers or by abstaining from the practice of using their amendment powers to restore the rights of the States.

The Amended Constitution

The following summary of Amendments XI–XXVII completes this introduction to the constitutional principles of American government, bringing the reader up-to-date on formal changes of our political system that have been made since the founding period.

A.

AMENDMENT XI (1798)

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Article III, Section 2 extends the judicial power to “cases or controversies between a State and citizens of another State.” In Chisholm v. Georgia (1793), the Supreme Court turned a deaf ear to Georgia’s claim of “sovereign immunity,” and interpreted the clause literally to mean that a citizen of the State of South Carolina could sue the State of Georgia without its consent.

The Eleventh Amendment reversed that decision, thereby limiting Federal judicial power, at least in theory. In reality, it affords the States little protection against Federal courts. The Supreme Court has interpreted the Amendment to mean that any citizen can sue a State official if that official is allegedly acting in an illegal or unconstitutional manner. The Court has reasoned that a State officer who acts beyond the law ceases to be an official of his State. Congress also frequently gets around the Amendment by conditioning State participation in Federal programs on the States’ willingness to waive immunity.

The Fourteenth Amendment, which prohibits the States from denying any person life, liberty, or property without due process of law or equal protection of the law, also blunts the effect of the Eleventh Amendment. The Supreme Court has held under this Amendment that Federal courts may stop State officials from enforcing a State law, even if its constitutionality has not yet been determined and has simply been challenged. The Court has also held that the Eleventh Amendment is limited by the Enforcement Clause of the Fourteenth Amendment, and that Congress may authorize persons to sue the States, cities, and counties directly, rather than State officers, to remedy denials of due process and equal protection.

B.

AMENDMENT XII (1804)

The Electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.—] The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

This Amendment is an example of how custom and usage have changed the Constitution. The Framers expected electors to be independent, distinguished citizens, but the rise of national political parties changed the character of the Electoral College.

By the election of 1800, Electors had come to be the party faithful, pledged to vote for their party’s candidate. In this election, the Jeffersonian Republicans held a majority in the Electoral College. They voted without indicating their choice for President and Vice President, as Article II, Section 3 prescribed, but because they were voting along party lines, Thomas Jefferson and Aaron Burr received the same number of votes, even though Burr was the vice presidential candidate. The issue was settled by the House of Representatives, which gave the presidency to Jefferson.

The Twelfth Amendment was designed to prevent a recurrence of this situation by requiring Electors to cast separate votes for President and Vice President.

C.

AMENDMENT XIII (1865)

section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

section 2. Congress shall have power to enforce this article by appropriate legislation.

This is the first of the three Civil War or Reconstruction Amendments. Prior to its adoption, the States were free to decide for themselves whether to permit or prohibit slavery within their borders. The Thirteenth Amendment deprives both the State and Federal governments of this power, and forbids slavery and involuntary servitude. It does not prohibit compulsory labor and other forms of “involuntary servitude” associated with the punishment and treatment of criminals.

Prolonged angry debates over slavery, in the Congress and elsewhere, ended in violence—and in constitutional amendments that would produce striking political and social changes in America. By March 1861, when the southern States already had seceded from the Union and formed their Confederacy, Congress was considering a constitutional amendment which, if ratified, would have been the Thirteenth Amendment. (The Senate rejected this proposed amendment on March 2, just two days before the inauguration of Abraham Lincoln as President.) The text of this proposal, intended to conciliate the South and preserve the Union, ran as follows: “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere within any State with the domestic institutions thereof including that of persons held to labor or service by the laws of said State.”

This proposed but rejected Amendment XIII, in other words, would have forbidden the Federal government ever to interfere with slavery in States that desired to retain chattel slavery. But on April 12, 1861, Confederates fired on Fort Sumter, in Charleston harbor, and the Civil War began. Everyone forgot about the amendment that would have protected the “Peculiar Institution” of slavery.

By the end of 1862, it was uncertain whether the North or the South would win the terrible struggle. In December, Union armies suffered severe defeats in Virginia and Mississippi. Alarmed by the Confederates’ successes, on January 1, 1863, President Lincoln issued the Emancipation Proclamation as an emergency measure, setting free all slaves within the “rebellious” states—that is, the Confederacy. This was a wartime device to damage the South’s economy and produce disorder there. The Proclamation did not emancipate slaves in the “loyal slave states”—Delaware, Maryland, Kentucky, Missouri—nor did it guarantee that slavery might not be restored after the end of the war. Besides, many men in Congress believed the Emancipation Proclamation to be unconstitutional.

So a year later, in January 1864, there was introduced in Congress a proposal for a constitutional amendment that would forbid slavery anywhere in the Union. This joint resolution was passed by the Senate in April, but rejected by the House in June. Not until January 1865 did the House of Representatives approve the proposed amendment—and then by a narrow margin and after much persuasion. By that time the Confederacy clearly was losing the war. On December 18, 1865, enough States had ratified this new Thirteenth Amendment, and it became part of the Constitution—the first amendment since 1804.

In Section 2, we encounter for the first time in the Constitution an odd provision that will be repeated in the Fourteenth, Fifteenth, and later amendments. This is the Enforcement Clause, which seemingly confers a non-legislative power on Congress to enforce the Thirteenth Amendment by appropriate legislation.

D.

AMENDMENT XIV (1868)

section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House remove such disability.

section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

This second Civil War or Reconstruction Amendment accounts for more than half of all cases heard in the Supreme Court nowadays.

Divided into five parts, the Fourteenth Amendment’s first section confers State and Federal citizenship on all persons born or naturalized in the United States, irrespective of race. It overturns the Dred Scott Case, which had held that blacks were not eligible for citizenship and therefore could not claim the privileges and immunities of American citizens.

Section 1 further provides that no State may abridge the privileges or immunities of United States citizens. The meaning of this confusing clause is obscured by the fact that it fails to define the nature and substance of these privileges and immunities. It should be distinguished from the privileges and immunities clause of Article IV of the Constitution, which requires the States to grant the same privileges and immunities (whatever the State determines them to be) to out-of-State citizens that it grants to its own citizens. The privileges and immunities of State citizens, in other words, vary from State to State. They are normally associated with such activities as the privilege of engaging in a trade or business, the use and enjoyment of State lands, and other privileges as opposed to basic fundamental rights.

In the Slaughter-House Cases (1873), the Supreme Court held that the privileges and immunities of United States, as opposed to State, citizens are not the same as the freedoms guaranteed by the Bill of Rights. Rather, they include privileges which owe their existence to the Constitution, Federal laws and treaties, such as the privilege to engage in interstate or foreign commerce, protection on the high seas and in foreign countries, and the privilege of voting in Federal elections. Thus limited, the privileges and immunities clause of the Fourteenth Amendment has never had much significance.

Section 1 of the Fourteenth Amendment also provides that no State shall deprive any person of life, liberty, or property without due process of law. This is the Due Process Clause that has become the primary source of civil rights litigation in today’s Federal courts.

The clause does not forbid a State from taking one’s life, liberty, or property. It provides merely that if these rights are to be denied, they must be denied according to the standards of due process. The concept of due process, we are reminded, dates back to Magna Charta (1215). As developed over time by the Anglo-American courts, the concept of due process came to mean that the individual, particularly in a criminal trial, was entitled to a fair trial. This meant that rich or poor, black or white, the defendant’s trial would be conducted according to the same rules and requirements of evidence, testimony, and the make-up of the jury.

By the end of the nineteenth century, the Supreme Court had expanded the Due Process Clause of the Fourteenth Amendment in two ways: (1) By looking beyond procedure to substance or the actual result of the trial. In a series of cases involving alleged denials of economic liberty, the Court held that the determination of whether there had been a denial of due process did not depend upon procedure alone, but whether liberty had been abridged in the end result. This interpretation came to be known as “substantive due process.” (2) The due process requirement, as originally conceived, was designed essentially to limit the courts and to make certain that they conducted fair trials. Under the doctrines of substantive due process, however, the standards of due process were applied to laws, not just trials, to limit the powers of the State legislatures and local governments.

Thus in a series of cases extending from the 1880s to 1937, the Supreme Court applied the concept of substantive or “economic” due process to strike down countless State laws that allegedly interfered with economic rights and had nothing to do with fair trials. In Lockner v. New York (1905), for example, the Court invalidated a State law limiting the working hours of bakery employees as a violation of “liberty of contract.” In West Coast Hotel v. Parrish (1937), however, the Court suddenly abandoned this doctrine, taking a “hands-off” position that State legislatures should have broad discretion to regulate the conditions of employment as they saw fit.

Meanwhile, however, the Court began moving in yet another direction during this period with respect to non-economic freedoms. In Gitlow v. New York (1925), the Court applied its substantive due process rationale to the First Amendment. This Amendment, like the remaining portions of the Bill of Rights, applies only to the Federal government. The Court held in Gitlow, however, that the First Amendment also limited the States. The Court reasoned that the word “liberty” in the Due Process Clause of the Fourteenth Amendment, which prohibits a State from denying any person life, liberty, or property in a trial, also means liberty of speech and press. It is questionable whether the members of Congress who wrote the Fourteenth Amendment intended for it to be interpreted in this manner. This was the beginning of what has come to be known as the Supreme Court’s doctrine of “incorporation,” a rule of interpretation we have discussed before which holds that the various freedoms protected against Federal abridgment in the Bill of Rights may be “incorporated” or “absorbed” into the word “liberty” of the Due Process Clause of the Fourteenth Amendment to restrict the States.

The remaining provision of Section 1 of the Fourteenth Amendment prohibits the States from denying any person the equal protection of the laws. The Equal Protection Clause has been instrumental in striking down State laws that discriminate against racial minorities, religious minorities, and women. In the landmark case of Brown v. Board of Education (1954), the Supreme Court held that racial segregation in the public schools was discriminatory and therefore contrary to the equal protection of the laws. In this decision, the Court rejected its earlier holding in Plessy v. Ferguson (1896) which had maintained that “separate but equal” facilities for whites and blacks were not discriminatory.

The Equal Protection Clause, as interpreted by the Courts, does not demand a rigid equality in all respects. The basic test used by the Court is whether the distinction complained of is “reasonable.” One way of deciding is to determine whether the group singled out favors or opposes the different treatment. If it tends to favor it, the group may be enjoying a particular privilege—as suggested, for example, by the military draft, which in the United States has always excluded women. If the group selected for unequal treatment tends to oppose it, however, the group may be experiencing unwarranted discrimination—as suggested by a law which arbitrarily excludes women or minorities from a certain profession.

Sections 2, 3, and 4 of the Fourteenth Amendment are largely of historical interest today. Section 2 modifies Article I, Section 2, Clause 3 of the Constitution, which provided that slaves should be counted at three-fifths of the number of free persons in apportioning representatives. Section 2 of the Fourteenth Amendment, taking account of the Thirteenth Amendment abolishing slavery, eliminates the three-fifths clause.

The other provision of this section authorizing Congress to reduce the number of representatives to which a State is entitled in the House of Representatives has never been enforced. It was intended to give Congress a retaliatory power against Confederate States which denied blacks the right to vote. It is also inconsistent with the Nineteenth Amendment, which extends the franchise to women, and the Twenty-Sixth Amendment, which lowers the voting age to eighteen.

Section 3 of the Fourteenth Amendment, designed by the triumphant Radical Republicans in Congress to punish the South and prevent any of its political or military leaders from assuming State or Federal office, rendered most former Confederate officials ineligible to serve in Congress, the Federal Judiciary, the executive branch of the United States government, the U.S. military, any State office, or in the Electoral College. Another objective of this section was to enhance the political power of “carpetbaggers” and “scalawags,” who could be counted upon to support the policies of the Radical Republicans.

President Andrew Johnson opposed this provision on the ground that it improperly restricted his power to pardon the leaders of the Confederacy and restore their political and civil rights. Not until 1898 did Congress pass legislation removing the disability.

Inspired by the desire to remove all doubt concerning the validity of financial obligations incurred by the Federal government during the Civil War, Section 4 of the Fourteenth Amendment simply reaffirmed the debts of the Union and invalidated those of the Confederacy.

This Section forbids both Federal and State governments to pay any debts contracted by a State that belonged to the Confederacy, “or any claim for the loss or emancipation of any slave.” (This latter prohibition of payment applied to slaves and slave owners in the “loyal free States,” as well as to those in the “rebellious States”—in effect, denying the guarantee that no property shall be taken without just compensation.)

With the Fourteenth Amendment, the powers of the several States began to dwindle. For the defeated eleven States that had joined the Confederacy to be readmitted to the Union, they were required first to ratify this Fourteenth Amendment, much though the people of those eleven States might dislike its provisions. Also, there were loud complaints in most southern States that political trickery and intimidation had been employed to secure ratification of the Amendment. About Amendment XIV, then, hangs a cloud; and interpretation of that Amendment continues to be controversial in today’s courts.

E.

AMENDMENT XV (1870)

section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

section 2. The Congress shall have power to enforce this article by appropriate legislation.

This is the third and last Civil War or Reconstruction Amendment. Its original purpose was to extend the franchise to the newly emancipated slaves. The Fifteenth Amendment does not technically give blacks the right to vote as such, but instead informs the States that race cannot be one of the factors it uses in determining voter qualifications. In effect, however, the Amendment as interpreted by the Supreme Court confers a right to vote upon all blacks who otherwise meet a State’s eligibility standards regarding such matters as age and residency. The Supreme Court has also held that the right extends beyond the general election to primary elections.

Section 2 of the Fifteenth Amendment repeats the Enforcement Clause language of the Thirteenth and Fourteenth amendments. Congress rarely used this power before it enacted the Voting Rights Act of 1965 and its ensuing amendments. Under this Act, Congress abolished literacy tests and racial gerrymandering, thereby prohibiting the States and their political subdivisions from intentionally “watering down” the black vote by drawing up electoral districts that reduce the impact of the black vote or reduce the chances of electing a black candidate to office. The Act also restricts the States in those instances where the drawing of electoral districts simply results in a dilution of black voting strength, whether by accident or design.

F.

AMENDMENT XVI (1913)

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.

In Pollack v. Farmer’s Loan & Trust (1895), the Supreme Court held unconstitutional an Act of Congress establishing an income tax derived from property. An income tax, said the Court, is a “direct” tax, and Article I, Section 2, Clause 3 and Article I, Section 9, Clause 4 of the Constitution specify that direct taxes must be apportioned according to population. Such apportionment might be possible under a uniform capitation tax, but not under an income tax based on property.

The Sixteenth Amendment overturned the Pollock case, authorizing Congress to levy a tax on income, whatever its source, without apportionment. This Amendment strengthens the tax power of Congress, but necessarily reduces the power of States by reducing their tax base. In other words, there is less tax revenue available to the States as a result of this Amendment because there is less to collect after the Federal government has levied its tax. In this respect, the Sixteenth Amendment vitally affects the institution of federalism.

The Sixteenth Amendment, then, altered the relationships between the Federal government and the State governments. For Washington now enjoyed means for raising money more efficient than the means most States possessed. Beginning in the era of Franklin Roosevelt, the Congress found it expedient to secure cooperation from State legislatures by offering the States grants of money for purposes approved by the Federal government. Often the State could obtain the “grant-in-aid” by matching the Federal contribution; sometimes Washington required that the States contribute only a small percentage of the total costs, or perhaps nothing at all.

Thus increasingly, since the Second World War, the Federal government has paid the bills for large public projects and induced or compelled State governments to adopt and administer Federal programs. Federal funds are awarded for compliance or withheld for lack of cooperation from a State. States that do not comply “lose” Federal money given to other States. The result of this policy has been to diminish greatly the power of the State governments to make their own decisions, so shifting the political structure of the United States toward centralization, and toward policy-making by an elite of central administrators, rather than through the established processes of a democratic republic.

A recent example of how Federal grants may be used to “bribe” or compel State governments to obey Congress’s will—or perhaps the will of lobbyists in Washington who bring pressure to bear upon members of Congress—is the requirement that State governments must make the use of seat-belts in all automobiles compulsory, on pain of losing Federal funds for highway-building if a State fails to comply. In the past, States have also run the risk of losing Federal highway funds if they refused—as did California—to require motorcyclists to wear helmets. Such concerns formerly were regarded as falling wholly within the established police powers of the States. When many such decisions no longer can be made statewide or locally, but are determined in Washington by Congress, executive administrators, or interest groups—then it would seem the original federal plan of government has given way, for the most part, to a centralized political scheme not contemplated by the Constitution. But for the Income Tax Amendment, Congress would not have the financial resources that make these intrusions into the domain of State power possible.

G.

AMENDMENT XVII (1913)

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies; Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The Framers of the Constitution specified in Article I, Section 3 that United States Senators should be chosen by each State legislature, two for each State, while members of the House of Representatives should be chosen by popular election from congressional districts. The main purpose of this method of indirect election of Senators was to give each State, no matter how small its population, a voice in the Congress.

In effect, each State’s two Senators thus represented the State itself, rather than the voters in particular districts; and they represented their State in the sense that each State was a sovereign political body, not simply an aggregation of voters. Senator Daniel Webster represented Massachusetts as a commonwealth with a culture of its own and interests of its own. Senator John C. Calhoun represented the proud State of South Carolina in Washington—not merely a constituency of rural voters. Sometimes it may be necessary for a public man to sacrifice himself for the people, Calhoun said on one occasion, but never to the people. Senators were delegates or symbols of their States, so to speak; and often the State legislatures, aware of senatorial dignity, chose some remarkable men as their United States Senators—at least for the first half-century of the Republic.

Senators, it was thought, would exercise a moderating influence on the popularly based House of Representatives. The Framers expected State legislatures, made up for the most part of experienced politicians, to be able to choose distinguished Senators better than could average citizens. Presumably the legislatures of the several States would tend to select senatorial candidates of superior mind, character, and education; often the Senators so chosen would also be men of some wealth—which the Framers considered all to the good. And in truth, especially in the early Republic, the Senate at Washington was a gathering of men of unusual talent and strength of character, somewhat comparable to the body of men who had been delegates to the Great Convention of 1787.

But societies change. As the franchise was enlarged in every State, the American people looked with increasing suspicion upon the indirect election of Senators. Gradually, in many States, the legislatures yielded to popular pressure, and members of those bodies pledged themselves at the time of their own election, or on some other occasion, to vote for some particular candidate for the United States Senate when the State legislature chose the next Senator. This was the process that had converted the Electors of the Electoral College into mere registrars of the popular choice for the Presidency. In theory, then, United States Senators still were chosen by legislatures. But in reality, State legislators voted for senatorial candidates quite as their constituents told them to vote. When the Senate finally capitulated in 1912, the voters in some twenty-nine States had already obtained the right to indicate their preferences for Senator in the party primaries—and State legislatures invariably followed the wishes of the voters.

Like the Sixteenth Amendment, the Seventeenth grew out of the Populist and Progressive revolt of the late nineteenth and early twentieth centuries. Generally favoring more democracy in every aspect of political life, State as well as Federal, the Populists and Progressives launched major political reform efforts, particularly in the Deep South and west of the Mississippi River, to reduce the political and economic power of America’s burgeoning class of plutocrats—men of humble origin, often, who had become wealthy almost overnight as a result of the industrial revolution and exerted a powerful influence in State governments.

In the legendary stories of Horatio Alger, they were America’s heroes, symbols of the American success story—immigrants, perhaps, who through self-sacrifice and hard work had risen to the top. To the Populists and Progressives, however, they were often the proverbial business tycoons—greedy capitalists, they charged, who engaged in monopolistic practices to maximize their wealth and used their wealth to buy votes in legislative bodies, courts of law, and governors’ mansions. The restructuring of State Constitutions throughout the country at this time—for the purpose of circumventing State legislatures through the initiative and referendum devices, and controlling the courts through the election or recall of judges—was the fruit of their labor.

Whereas the Sixteenth Amendment promised to limit the wealth and economic power of these millionaire industrialists, the Seventeenth was premised on the assumption that the direct election of Senators would limit their political influence. Many Senators were millionaires themselves, and many more, it was generally believed, were obligated to special economic interests. The wealthy might bribe State legislators but they could not bribe the entire electorate. The direct election of Senators, thought the Populists and Progressives, would cure the evils of Big Business, giant trusts, and corporate monopolies. Buttressed by the Sixteenth Amendment, the Seventeenth might then prepare the way for breaking up great concentrations of wealth and, hoped some of the more radical Populists, lead to a redistribution of wealth. But some argue that no conspicuous improvement in the talents and character of members of the Senate seems to have been the result of this Amendment.

One prominent public leader of recent decades, Eugene McCarthy—United States Senator from Minnesota for two terms—remarks in his book Frontiers of American Democracy that the Seventeenth Amendment did harm to the quality of the United States Senate. A principal reason for this is the fact that although a Representative in the House has to please only his constituents in his district, a United States Senator must campaign statewide—and wander about his State fairly frequently, if he wishes to remain in office. Much of his time is wasted in perpetual campaigning. Besides, the campaign expenditures of a senatorial candidate, both in the primary and in the regular election, usually are gigantic; this money must be found somewhere; so either a candidate’s family must be very wealthy, and have wealthy friends, or else the candidate may find it necessary to make promises to special interests, or voting blocs that he cannot fulfill or ought not to fulfill. It is noteworthy that most Senators today are very well-to-do, and many are multimillionaires. The task of courting an immense State-wide electorate may invite as much corruption as courting a small body of State legislators ever did.

However that may be, nowadays the principal distinction between members of the House of Representatives and members of the Senate is that Senators hold office for six years, and Representatives for merely two. The longer term tends to give Senators greater independence of decision, at least during the earlier years of the six-year term, so enabling them to be something better than mere delegates to Washington.

The Seventeenth Amendment supersedes Article I, Section 3 of the Constitution. As a result, members of the United States Senate have ceased to speak for, represent, or be responsible to the State legislatures. That the change enlarged the influence of the voters and weakened that of federalism is abundantly clear.

H.

AMENDMENT XVIII (1919)

section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Known as the Prohibition Amendment, this short-lived amendment prohibited the manufacture, sale, or transportation of intoxicating liquors throughout the United States. Although the Amendment was enthusiastically ratified by every State in the Union except Connecticut and Rhode Island, the “noble experiment” proved to be largely unenforceable. Just fourteen years after its adoption, it was repealed.

The colossal failure of the Eighteenth Amendment demonstrates the folly of using the amendment process for purposes for which it was not intended. National Prohibition was a specific public policy that could have easily been achieved by a simple Act of Congress. It would also seem that the issue should have been left for resolution by the States, as was the case prior to its adoption. The Constitution is not served well when the amendment process is used to implement specific policies that might otherwise be accomplished by a statute. Such, it would seem, is the lesson to be learned from this well-intentioned but unwise amendment. One of the more unfortunate results of this amendment is that it fostered the growth of bootleggers, which in turn gave rise to organized crime, from which the United States has not yet recovered.

I.

AMENDMENT XIX (1920)

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

This Amendment establishing women’s suffrage is the culmination of a political reform effort that began in the 1840s. When the Amendment was first adopted, it was argued that the Amendment enlarged the electorate without a State’s consent, destroyed its autonomy, and therefore exceeded the amending power. Pointing to the Fifteenth Amendment as precedent, the Supreme Court rejected this view, and has seldom had occasion to interpret the Amendment since.

J.

AMENDMENT XX (1933)

section 1. 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.

section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

section 3. 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.

section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

This is the so-called Lame Duck Amendment. It supersedes Article I, Section 4, Clause 2 of the Constitution, which called for Congress to begin each session on the first Monday in December. Members of Congress now convene on January 3. The Amendment also changes the date when the terms of President and Vice President shall begin—from March 4 to January 20.

The Constitution does not specify a date when the terms of Senators and Representatives shall begin. It does provide, however, that one-third of the Senate and all of the Representatives shall be elected every two years. Nor does the Constitution indicate when the terms of the President and Vice President shall commence. The First Congress resolved the issue in 1789 by passing a statute providing that the terms of President and Vice President and of Senators and Representatives shall begin on March 4.

What this meant, however, was that Congress had a short session every other year. In the “off year,” when there were no elections, Congress convened on the first Monday of December and remained in session throughout much of the next year. But in the following election year, Congress was required to hold a short session because of the November elections. After convening in December, Congress had to end the session in March, when the terms expired for those Senators and Representatives defeated in the previous November elections.

These short sessions came to be known as “lame duck” sessions because they allowed members of Congress who had been defeated in the November elections (“lame ducks”) to remain in office until March of the following year, when their terms expired. It also meant that individuals elected in November had to wait for five months before taking office, and could not really begin their work until the following December—thirteen months after their election. Not the least of the difficulties solved by the Twentieth Amendment was the democratic problem of having defeated members of Congress, accountable to no one, representing their constituents for almost half a year.

An obvious question is why the Amendment was necessary since the original date of March 4 was set by statute. The answer is that the changes to January 3 and January 20 shortened the terms of those in office, and these changes would therefore have been unconstitutional if accomplished through the legislative rather than the amendment process.

Congress has fulfilled its obligations under Section 3 of the Twentieth Amendment by enacting legislation from time to time dealing with presidential succession. The Presidential Succession Act of 1947, for example, deals with the problem that would arise if both the President and Vice President died or were otherwise unable to qualify for office on or before January 20.

K.

AMENDMENT XXI (1933)

section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

This Amendment simply repeals the Eighteenth Amendment and restores to the States the power to regulate the manufacture, sale, and consumption of alcoholic beverages. State regulations may nevertheless be set aside by Congress under its commerce power or if they violate the Export-Import Clause.

L.

AMENDMENT XXII (1951)

section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

This Amendment arose out of resentment or uneasiness at President Franklin D. Roosevelt’s defiance of the “no third-term” tradition established by George Washington. Might not some man more charismatic even than Roosevelt succeed in getting elected for his whole life term—as if he were a king?

The maximum period that a person can now serve as President is ten years—two years by elevation to the office because of the death, disability, or resignation of the elected President and two elected terms of four years each. Otherwise, a person can serve no more than eight years or two terms as President as a result of the Twenty-Second Amendment.

Critics of the Amendment contend that an able and popular President, in many circumstances, is more of a treasure than a danger, and ought not to be absolutely forbidden election to a third term. In addition, this Amendment necessarily reduces the influence of a President during his second term because members of Congress have less incentive to support his policies if they know he will be retiring and cannot punish or reward them for their actions in the next administration.

M.

AMENDMENT XXIII (1961)

section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

section 2. The Congress shall have power to enforce this article by appropriate legislation.

The purpose of this Amendment is to give residents of the District of Columbia the right to vote in presidential elections. Washington, D.C., receives three electoral votes under the Amendment since that is all that “the least populous State”—Alaska—is assigned.

N.

AMENDMENT XXIV (1964)

section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

section 2. The Congress shall have power to enforce this article by appropriate legislation.

Known as the Poll Tax Amendment, the Twenty-Fourth Amendment eliminates the poll tax in all Federal elections. Two years after its adoption, an impatient Supreme Court curiously ruled in Harper v. Virginia Board of Electors that the Equal Protection Clause of the Fourteenth Amendment forbids a poll tax in all State elections.

O.

AMENDMENT XXV (1967)

section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

In retrospect, it seems that the Framers of the Constitution overlooked the problem that arises when a President is no longer able to fulfill the duties of his office because he has become physically or mentally disabled. The Twenty-Fifth Amendment attempts to resolve this problem, which became a critical one on a number of occasions in this century. Two Presidents—Wilson and Eisenhower—lay gravely ill while in office. Franklin Roosevelt was apparently senile in his last days, and Ronald Reagan was struck down by an assassin’s bullet that could have left him in a coma, as was the case when President Garfield lay unconscious for eighty days before he died. The Twenty-Fifth Amendment also deals with the contingency that arises when a President resigns from office—something that had never before happened but then occurred only seven years after the Amendment was adopted when Richard Nixon resigned to avoid removal from office.

Most of the Amendment is self-explanatory. Section 1 provides that the Vice President shall become President if the President dies in office, is removed, or resigns. Section 2 provides that the President shall nominate a Vice President when there is a vacancy in the office, and that both houses shall confirm the appointment. This provision was later implemented when Vice President Spiro Agnew resigned in 1973. President Nixon then nominated Gerald Ford for Vice President, who was promptly confirmed. When President Nixon resigned, the office of Vice President again became vacant because Ford was elevated to the presidency. President Ford in turn nominated Nelson Rockefeller to be Vice President, who served out Agnew’s term and then died shortly after leaving office.

Section 3 states the procedures that are to be followed in the event the President decides that he cannot discharge his responsibilities. When the written declaration stating that he is unable to discharge his duties is sent, the Vice President serves as Acting President until the President is able to resume his responsibilities.

Continuing, Section 4 states the procedures that are to be followed when the President is personally unable to inform the Congress that he can no longer meet his responsibilities. In this instance, the Vice President becomes Acting President whenever he and a majority of the President’s cabinet send a written declaration to Congress that the President is unable to continue. If there is a disagreement between the President on the one hand and Vice President and a cabinet majority on the other, Congress must decide whether the President is fit to resume his responsibilities. The presumption is in favor of the President, because a two-thirds vote in both houses is required to retain the Vice President as Acting President.

P.

AMENDMENT XXVI (1971)

section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

section 2. The Congress shall have power to enforce this article by appropriate legislation.

Our Twenty-Sixth Amendment confers the right to vote on all persons who are eighteen years of age or older. The Amendment applies to State as well as national elections.

Q.

AMENDMENT XXVII (1992)

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The Bill of Rights, as originally proposed in 1789 by the First Congress, contained twelve rather than ten amendments. The amendments were arranged by James Madison, then a member of the House of Representatives, not in order of importance or preference, but according to the order of the provisions of the Constitution they were intended to modify; for Madison’s original plan, soon to be rejected by the House, was to incorporate the amendments into the constitutional text.

Roger Sherman of Connecticut, who had served with Madison as a delegate to the Philadelphia Convention, led the opposition to Madison’s plan. Incorporation of the amendments, he argued, would destroy the integrity of the document, necessitating a new draft of the Constitution every time a new amendment was added. “We ought not to interweave our propositions into the work itself,” he said, “because it will be destructive of the whole fabric.” The basic principles of legal draftmanship applicable to statutory law, he reasoned, apply as well to the fundamental law: “when an alteration is made in an act, it is done by way of supplement.” Moreover, continued Sherman, Madison’s plan was not consistent with the democratic theory of the Constitution. “The Constitution is an act of the people,” he reminded his colleagues, “and ought to remain entire. But amendments will be the act of the State governments.” The House agreed and adopted Sherman’s principle of construction. This vote set the precedent for all future exercises of the amending power.

Of the twelve amendments proposed, the first two dealt with Congress rather than with individual rights. The first, a reapportionment amendment, would have altered Article I, Section 2 by tying the size of the House of Representatives to increases in population. The amendment provided that there should be one Representative for every 30,000 people until the size of the House reached 100 members, after which there would be one Representative for every 40,000 people until the House had 200 members. Congress would then set a new ratio that allowed for no more than one representative for every 50,000 people.

The scheme was hardly realistic, however, and grossly underestimated the future growth of the nation. The population of the United States at this writing, at the turn of the century, is more than 250 million people. Had this amendment been approved, it would be necessary to increase the membership of the House of Representatives from 435 (as currently set by statute) to 5,000 members! Such a large assembly obviously could not function as a legislative body. Fortunately, the proposed Reapportionment Amendment was ratified by only ten States and thus failed to be approved by the necessary three-fourths of the States, as provided by Article V of the Constitution.

The second proposed amendment, sometimes referred to as “the Congressional Pay,” “Pay Raise,” “Compensation,” or “Madison” Amendment, stipulated that no law changing the compensation of members of the House of Representatives and Senate could go into effect until after an election to the House had taken place. The purpose of this amendment was to force Representatives to go before the voters, and Senators before the State legislatures, and seek approval for salary increases before they went into effect. If a Representative or Senator was then elected after voting to increase his or her own salary, the increase was presumably acceptable to a majority of the electorate, and the legislator would receive the pay raise when he was returned to office. The broader purpose of the amendment, however, was to discourage the election of self-serving opportunists who might use public office for personal financial gain.

Madison’s “Congressional Pay Amendment” did not fare much better than the abortive Reapportionment Amendment. By 1791, only six States had ratified the proposal, and it soon fell into obscurity. With the exception of Ohio’s isolated ratification in 1873, as part of a protest against massive salary increases throughout the Federal government, and Wyoming’s ratification in 1978 to protest a 1977 Congressional pay increase, Madison’s proposal was virtually forgotten for nearly two centuries.

Beginning in 1982, an extraordinary series of events revived public interest in the moribund amendment, largely because of the diligence and perseverance of a young college student. While looking for a research topic, Gregory D. Watson, an undergraduate economics major at the University of Texas at Austin, stumbled upon the Congressional Pay Amendment. He discovered that the two unratified proposals in the original Bill of Rights contained no internal time limits for ratification, and concluded not only that the Congressional Pay Amendment was a worthy proposal, but that it was also still viable. In his research paper, he described the origin, meaning, and history of the Amendment, and argued in favor of its adoption. Theoretically, he reasoned, a proposed amendment remains valid for ratification indefinitely, unless Congress has placed a time limit upon it.

But Watson’s college instructor was unpersuaded. He gave Watson a grade of C on his paper, informing him that the Amendment was defunct and would never become a part of the Constitution. Ten years later, Watson proved his teacher wrong, as well as members of Congress, legal scholars, and historians, when the Archivist of the United States certified in 1992, after the thirty-eighth State (Michigan) had approved the measure, that the Congressional Pay Amendment had been duly ratified by three-fourths of the States. Originally the second amendment, it was now officially declared to be the Twenty-Seventh Amendment to the Constitution.

Watson’s personal triumph was unparalleled in the history of the amendment process, for the ratification of this Amendment was mainly the result of one individual’s prophetic vision, indomitable spirit, and hard labor. After leaving the University, Gregory Watson became an aide in the Texas legislature. During his free time he waged a lonely ten-year battle to generate support for the Amendment. Truly a one-man lobbying firm, Watson encouraged State legislators throughout the Union to support the Amendment. One by one, first Maine in 1983, then Colorado in 1984, the States rallied to the cause.

No doubt much of Watson’s success may be attributed to increasing public resentment at this time against various legislative devices Congress had concocted to enable members to raise their own salaries without registering a vote. One such device was the creation in 1967 of the President’s Commission on Executive, Legislative, and Judicial Salaries. The Commission’s recommendations would take effect automatically unless members of Congress registered a negative vote. Thus by merely doing nothing Federal legislators routinely enjoyed generous salary increases. The Twenty-Seventh Amendment put an end to this charade, and members of Congress are now held accountable for their salary increases.

Conclusion

At the close of the twentieth century, American society is very different from what it was at the close of the eighteenth century. Yet the Constitution ratified in 1788 still functions vigorously enough in a nation vastly increased in territory and population, vastly altered in its economy and technology. It seems worthwhile to take inventory of the Constitution’s enduring advantages.

(1) The Federal Union, held together by the Constitution, makes the United States the greatest power in the world, well prepared for national defense, able to muster immense resources in time of need, virtually invulnerable to attack until the development of long-distance nuclear weapons.

(2) The huge internal free-trade area of the United States, and the constitutional protections afforded to private property, commerce, and industry, have produced remarkable and enduring material prosperity—all directly related to the organic law of the United States, the Constitution.

(3) The division of political powers and functions between Federal and State governments gives the country energetic national policy, and yet leaves many important concerns in the hands of States and localities.

(4) An elaborate system of courts of law, both Federal and State, keeps the peace for Americans and maintains the rule of law far better than in most of the rest of the world.

(5) Civil rights for all citizens are jealously guarded by the Constitution, and effective measures are taken to make sure that no one will suffer solely because of his race, sex, or religion. In no country does there exist a higher degree of personal freedom.

(6) Participation in public affairs and decision-making is open to everyone interested, through the constitutional institutions of representative government. From local school boards and township offices to the Congress and the presidency, it is possible for an American to make his opinions known and his vote sought.

(7) No person, however rich or well known, exerts arbitrary power in America. Checks upon power, and balances of power, still function in the national and the State governments. Nor does any class or social group enjoy special privileges at law.

(8) Individual freedom of choice in many things, personal privacy, and opportunity for success in many walks of life are made possible by a political system that takes heed of the dignity of the human person and looks upon the state as designed for the advancement and protection of that person.

(9) Freedom of religious belief and practice is secure in the United States, and fanatic ideologies have not thrust aside the American habit of thinking for one’s self.

(10) Freedom of speech and of the press and other media of communication are virtually unlimited; opportunities for education, training, and self-improvement are greater than in any other country.

All these ten large advantages, and a good many more, are bound up with our constitutional system and the customs and traditions that have been nurtured by the Constitution. But also the Constitution of the United States encounters real difficulties nowadays. Can it endure for another two centuries? Listed below are some of the problems that must be confronted by Americans who know that liberty, order, and justice do not endure if they are left unattended.

(1) Any political order, including that of the United States, rests upon a moral order—a body of common convictions about good and evil, about duties and rights. The Constitution was drawn up by men who shared certain realistic and healthy assumptions about human nature and society. But nowadays in this country, as generally in the modern world, signs of widespread moral decay are obvious enough. Good laws are not upheld by corrupt men and women. The Framers of the Constitution spoke often of virtue, meaning by that word both personal courage and integrity, and a general willingness to sacrifice one’s own interests, if need be, for the common good. Are the American people, most of them, still aware of moral obligations and prepared to uphold the Constitution in an hour of need?

(2) The Congress and the State legislatures often seem to be lacking in able leadership, frequently timid, and too easily influenced by pressure groups and special interests. Too few Senators and Representatives take long views. Too many look upon politics merely as a means to personal advancement. The American democracy cannot endure a great while without a leadership that retains some aristocratic qualities—particularly a sense of honor, of duty, and of country.

(3) More and more power is concentrated in the legislative and executive branches of the Federal government. Congress, with an immense new bureaucracy of its own, continues to create new executive departments and regulatory agencies and appropriate increasingly huge amounts of money for thousands of Federal programs. Matters previously subject to the jurisdiction of the States, in ever increasing degrees, are pulled into the orbit of Congressional supremacy, often by an unrestricted use of the commerce power, the welfare and spending power, and the enforcement powers of the Fourteenth and Fifteenth amendments. The administrative details, requiring the constant exercise of discretion and broad decision-making authority, are then turned over to a massive Federal bureaucracy. Congress has so many programs, infinitely complex, varied, and demanding, that the members are no longer able to debate the measures they propose in an intelligent and thorough manner.

The executive department also grows larger, and the powers of the President expand as new agencies and programs are added by Congress. Immense new responsibilities around the world greatly amplify the President’s diplomatic and military powers. Many major public decisions are actually made by the President’s army of advisors and personal staff—a body of persons whose names are virtually unknown outside of the White House. The people expect more and more of the President; but any man, however able, has but twenty-four hours in his day, and is not infallible.

(4) With each passing term, the Supreme Court and lower Federal courts handle more and more cases and resolve more and more disputes that were once considered to be within the exclusive domain of the State judiciaries. Both Federal and State courts are immensely overburdened by their case loads, principally because they have more laws to interpret. More judges are also willing to take cases that augment the judicial power. Months, often years, go by before cases are settled; and truly justice delayed is justice denied.

Americans, it is feared, have become a litigious people, always filing lawsuits—many of them seeking to extract material advantages from wealthy individuals and corporations. Judges are made arrogant by the power that they have themselves amassed or has been thrust into their hands by legislatures. Some, instead of exercising self-restraint and confining their duties to the interpretation of the law, stretch the meaning of words in order to reach desired results, becoming law- and policy-makers. And jurisprudence—the philosophy and history of law—is neglected in nearly all the law schools. When the legal system decays, however, the organic law called the Constitution becomes infected, threatening the life of the nation.

(5) The fifty States of the Union have given up to Washington many of their proper responsibilities, and frequently look to that national capital for direction. For many of their functions they have become dependent upon funds from the national treasury. If this decay of State and local energy and resources and imagination continues much longer, America will cease to have a federal system of government except in name, and instead will have stumbled into a centralized structure in which the States have been converted into obedient provinces. But the United States is too big in extent and too populous for a centralized political system to function tolerably well. The American democracy, too, has its roots in local and State government. Under large-scale centralization, real democracy would wither.

(6) America’s cities, nearly all of them, have decayed in all respects over the past half-century. Most Americans cannot remember a time when “inner cities” were good places to live. Jefferson feared that cities would be to the Republic what sores are to the body. We seem to be justifying his fears at the end of the twentieth century. The word civilization is derived from the Latin word for city; and a country in which cities become dreary and crime-ridden presently ceases to have a decent civilization. The most fundamental of civil rights is the right to walk the streets in safety. If the cities become places of ugliness, drug abuse, and terror, is not talk about extending the rights of the accused absurd?

(7) Over the past half-century there has grown in the United States, with alarming speed, that class of people the old Romans (and the modern Marxists) called a proletariat: that is, people who perform no duties, give nothing to the community but their children, and exist at public expense. America’s leading men of 1787 saw a good many people who were poor enough, but they did not have to deal with a true proletariat. Such a class, apathetic but potentially dangerous, has been produced, ironically enough, by America’s technological and economic triumph. The hope of the Framers of the Constitution was that a vigorous and conscientious American people would cherish and refresh that Constitution. A nation of proletarians would require a very different sort of constitution, far less free. Has America today sufficient imagination and intelligence to redeem “the lonely crowd” from proletarian life?

(8) The generation of Americans that framed the Constitution were humanely schooled in classical literature and English literature, history, the sciences of the time, political theory, and religion. It was understood in the early republic that a principal aim of formal education was the building of good character. But today’s public instruction neglects moral knowledge, actually forbids religious teaching, reduces historical studies to a minimum, discards great books in favor of “current awareness,” and shrinks from the task of forming a philosophical habit of mind. From kindergarten up through graduate school, American education nowadays is weighed in the balance and found wanting, by official commissions and foundations’ studies. Study of the Constitution, for one thing, has been shabbily neglected in the typical school, public or private. A people whose schooling has been reduced to a vague familiarity with current events or the mastering of money-making skills may not understand how to keep a good constitution, or even understand its benefits. Can our democratic republic survive if our educational system fails to encourage such values as an informed and virtuous citizenry and an understanding and appreciation of the American constitutional system?

(9) A grim destructive power in the modern world is ideology, or political fanaticism, bent upon the destruction of all existing political, social, and economic institutions and venerable traditions and beliefs. Whether Communist, or Nazi, or ferocious revolutionary of some other persuasion, the ideologue always has a master plan or utopian scheme, based on “scientific” reasoning, to remake the world. He detests constitutional order and aspires to erect a domination of his own party upon the ruins of “bourgeois culture” or “reactionary imperialist powers”—the United States in particular. Ideology is what Edmund Burke called “armed doctrine”—false ideas promoted by weapons.

The Framers of the Constitution were no ideologues, but realistic men keenly aware of the lessons of the past and the limitations of human nature. The political structure they put together was quite free of ideological illusions. Have the Americans of our era enough sound sense to detect the fallacies in such an ideology as Marxism? Would they, like the Americans of 1776, venture their lives, their fortunes, and their sacred honor in defense of their inheritance of liberty, order, and justice? Hard choices lie ahead, even into the twenty-first century.

(10) To sustain a good constitutional order, it is necessary for many people in a society to participate intelligently and voluntarily, with real energy, often at expense to themselves, in public affairs at every level. The Framers took for granted this price that must be paid for the preservation of the commonwealth. What proportion of the American population today takes any active part in practical politics—counting as political activity any action beyond the mere act of voting? Making a small contribution to a campaign fund, attending a local political meeting, giving a friend a ride to an election booth—all of these acts count toward being politically active.

Well, what percentage of registered voters are politically active? In California, the state with the highest level of political activity, about five percent are politically active.

Americans generally have not been political fanatics, and one hopes that they may never be. But to preserve and renew America’s constitutional order, more than five percent of the American people must take some interest in the Constitution of the United States, and make at least some gesture toward active participation in public responsibilities.

The preceding ten problems of American society have been outlined succinctly not to dishearten young men and women, but to suggest the ways in which all of us can help to keep American life worth living. The recognition of difficulties ought not to make us despair.

For the American republic is only two centuries old—young for a nation. The old Roman civilization endured for a thousand years; the Byzantine civilization, centered at Constantinople, for another thousand. English civilization is nine centuries old, at least; Italian and French and Spanish and Germanic civilization, older still.

So there is good reason to expect that the American Republic will endure for many more centuries—supposing enough of us are willing to confront our national difficulties and work intelligently at renewal of our civilization. In Shakespeare’s line, we must “take arms against a sea of troubles, and by opposing end them.”

How do we commence this work of renewal and reinvigoration? One of the better ways is to light what Patrick Henry called “the lamp of experience,” to peer into the future by the light of the past. America’s political past is best apprehended by tracing the development of the Constitution of the United States, from its roots in the ancient world and British institutions, all the way to the constitutional controversies that are so lively today.

What we have offered you in this book is the basic structure of America’s constitutional order. It is up to you to preserve and improve that structure; and you have a lifetime in which to work at it.

SUGGESTED READING

  • American Bar Association, Amendment of the Constitution by the Convention Method Under Article V (Chicago: ABA, 1974).
  • Herman V. Ames, Proposed Amendments to the Constitution of the United States During the First Century of Its History (New York: Burt Franklin, 1970).
  • Richard Bernstein, with Jerome Agel, Amending America (New York: Random House, 1993).
  • Judith Best, The Case Against Direct Election of the President: A Defense of the Electoral College (Ithaca, N.Y.: Cornell University Press, 1971).
  • Russell L. Caplan, Constitutional Brinkmanship: Amending the Constitution by National Convention (New York: Oxford University Press, 1988).
  • Edward S. Corwin, The Constitution and What It Means Today (Princeton: Princeton University Press, 1978).
  • Walter Fairleigh Dodd, The Revision and Amendment of State Constitutions (Baltimore: Johns Hopkins University Press, 1910).
  • Orrin G. Hatch, The Equal Rights Amendment: Myth and Reality (Provo, Utah: Savant Press, 1983).
  • Roger Sherman Hoar, Constitutional Conventions: Their Natural Powers and Limitations (Boston: Little, Brown, 1919).
  • John A. Jamerson, A Treatise on Constitutional Conventions: Their History, Powers and Modes of Proceeding (New York: Da Capo Press, 1972).
  • David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1997).
  • Lester Bernhardt Orfield, The Amending of the Federal Constitution (Ann Arbor: University of Michigan Press, 1942).
  • Paul J. Weber and Barbara A. Perry, Unfounded Fears: Myths and Realities of a Constitutional Convention (New York: Praeger, 1989).

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