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