One in a series of articles. You can read the whole series here.
As I mentioned in closing yesterday, the Constitution has been successfully amended 27 times. (Major trivia genius points to anyone who can describe the 27th Amendment. Answer revealed below.)
Overall, the amendments have been for the better, some of them very much better. They have advanced rights, liberties and greatly increasing the democratic content of our system. They have tweaked the governmental structure system for the better but not altered it much and done nothing about the many-veto-points problem.
In his book (which I cited yesterday), “The Constitution of the United States of America; A contextual analysis,” Harvard Law Professor Mark Tushnet offered an overview of the amendments, from which I borrow below as I try to support yesterday’s concluding statement that, taken together, the 27 amendments amount to less fundamental change than meets the eye. Tushnet sorted the amendments into categories:
The Bill of Rights
The first 10 amendments, which we collectively refer to as the Bill of Rights, can reasonably be understood as part of the original Constitution. I’ve told the tale before. The Framers talked about whether to include such a list of basic rights of individuals and states that the federal government must respect. They decided against it, and then ended up having to agree during the ratification debates to add a Bill of Rights by amendment. James Madison, a leader of both the Constitutional Convention and the first House of Representatives, fulfilled the promise.
That first Congress referred 12 amendments to the states. Ten were promptly ratified, including those establishing freedom of speech, press and religion (all three of which were bundled into what became the First Amendment).
Most of what we consider to be our “constitutional rights” are in those 10 amendments. We suffer sometimes from their ambiguity, much of which arises from the passage of time. The Bill of Rights says that the government needs a warrant to search your home but the Framers didn’t anticipate the possibility that a 21st century GPS tracker surreptitiously placed on a suspect’s car could also invade privacy. The Supremes had to decide whether it did (and they decided it did).
OK, that’s 10 of the 27 amendments.
The Reconstruction Three
Aside from the first 10, the three other greatest amendments are the 13th (abolishing slavery), 14th (requiring states to grant “equal protection of the laws” to all citizens, which had a lot to do with forcing the former slave states to respect the rights of the freed slaves) and the 15th (granting voting rights to the freed slaves and other non-whites).
The 14th was so big some analysts have said it became almost a whole new constitution. Although the Supreme Court wobbled on it in the 1890s, the “equal protection” clause became the basis of the landmark civil rights decisions of the 20th century, covering not only the equal rights of the freed slaves but eventually (slightly less) equal rights of women. Cases now in the pipeline will allow the Supreme Court to decide whether equal protection might mean equal rights to marriage for same-sex couples. The 14th Amendment also applied the doctrine of “due process” to the states. Before the Civil War, most of the rights outlined in the Bill of Rights were binding only on the federal government. Using the 14th, the court gradually “incorporated” most of the Bill of Rights into guarantees against state action as well.
The three Reconstruction amendments bear a slight procedural stain, since they were pushed through under the coercion of the federal occupation of the southern states in the aftermath of the Civil War. None of them could have been ratified in that period if the slaveocracy still controlled the southern states. Those states would not have approved them and would have had the numbers to block them.
Of course, by my lights these actions were more than justified. They removed the worst elements of the original Constitution. But in thinking through the normal, Framer-intended workings of the amendment process, the three were approved under circumstances far from normal. In fact, when they agreed to the original Constitution, the southern states believed that they had secured the power to block any such anti-slavery amendments forever.
It should also be noted that — despite being legally abolished — de facto slavery continued for many decades by devices such as the hideous peonage laws, which were the subject t of a recent eye-opening PBS documentary, showing how slavery under another name continued well into the 20th century.
Likewise, the “equal protection” and “privileges and immunities” guaranteed by the 14th Amendment did not prevent blatant de facto and de jure race discrimination for another century after the amendment was passed. These cruel, tragic aftermaths illustrate that just getting a law or even a constitutional amendment adopted doesn’t necessarily guarantee the desired results.
So that’s 13 of the 27 amendments.
Now let’s subtract two that had a net effect of zero. Amendment 18 prohibited the sale of alcoholic beverages. Amendment 21 repealed Amendment 18. Oops. Please drink responsibly.
So that covers 15 and leaves 12 amendments unaccounted for.
Overruling bad Supreme Court decisions
The next group forms a category that we sometimes dream about but don’t usually think about: Namely, amendments by which the Congress and the states worked together to overturn a Supreme Court opinion with which they disagreed. There are three of those.
The first Supreme Court ruled that a citizen of one state could use the federal courts to sue a different state. The 11th Amendment was quickly drafted, passed and ratified to overrule that decision, which also led to the still-evolving doctrine of “state sovereign immunity,” but let’s not go there.
The 16th Amendment, proposed by Congress in 1909 and ratified in 1913, overruled a Supreme Court ruling that found that Congress lacked the constitutional authority to impose an income tax. As soon as the amendment was ratified, Congress adopted an income tax and we’ve had one ever since. (The Framers had said nothing about income taxes, but before the 16th Amendment, the Supremes found other language in the Constitution to rule that federal income taxes were unconstitutional. It’s interesting to try to imagine what might happen to such a situation in today’s partisan/ideological/political climate.)
Congress didn’t need a constitutional amendment to lower the voting age from 21 to 18 in federal elections, and did so during the Vietnam era, inspired to some extent by the argument that if 18-year-olds could be drafted, they should have say in choosing the government that would manage draft and war policy. The law established 18 as the voting age for federal, state and local elections. States rights advocates argued that nothing in the Constitution gave the feds the right to regulate the voting age for state and local election. In fact, the Supreme Court decided Congress lacked that authority. Since state, local and federal election are all administered locally, that set up an administrative nightmare in which young voters might be old enough to vote in some contests and not others. The 26th Amendment was rushed through Congress and ratified at record speed (just 107 days) to overturn the court ruling and allow 18-year-olds to vote in all elections.
Who can vote and how and on what?
OK, now we have just nine amendments unaccounted for, and they involve realtively few rights, other than the right to vote. The ones that aren’t about voting rights are tweaks to the workings of U.S. system of government. The 18-year-old vote amendment and the 15th Amendment granting voting rights to non-whites could have counted in this category, too. Anyway, this batch also reflects the utility of amendments in fixing problems that popped up with the functioning of the government.
A perfect example of that is the oldest of this batch, Amendment 12 (ratified 1804), that allowed presidential electors to specify that one of their two votes was for a presidential candidate and the other for a vice presidential candidate. The original Electoral College required each elector to vote for two candidates, either of whom could be president or vice president. That led to the disastrous election of 1800, when the electoral vote came out tied between Thomas Jefferson and his running mate Aaron Burr. ( I described this mess previously in the context of the origins of the Electoral College system.)
The 17th Amendment (1913) established the direct popular election of U.S. senators. (The original plan allowed the state legislatures to choose senators without requiring a popular vote.)
The 19th Amendment (1919) granted voting rights to women. (Some states allowed women to vote earlier; the 19th nationalized women’s suffrage.)
The 20th Amendment (1933) shortened the lag between a November election and the swearing in of the new Congress and the new president to two months. (Before that, Inauguration Day wasn’t until March, leaving a ridiculous four months of lame-duckery. During the four-month hiatus after Lincoln’s election in 1860, the first secessions of the southern states occurred.)
The 22nd Amendment (1951) limited presidents to two terms. (Before that, the two-term limit had been observed by tradition, but not by law. Some presidents had flirted with third-term ambitions. When Franklin D. Roosevelt sought and won a third term in 1940 – and then a fourth in 1944 – Congress and the states decided to make the two-term limit legally binding. Bill Clinton has suggested that the amendment be revised so that someone like himself, after two terms, could take a term off, then come back. So far, that isn’t happening.)
The 23rd Amendment granted Electoral College votes to the District of Columbia (but, no matter how much larger the D.C. population, it cannot have more electoral votes than the least populous state).
The 24th Amendment (1964) ended the practice, then still used in several southern states as a method of reducing black voter turnout, of charging a “poll tax” to voters. The amendment applied only to federal elections. The Supreme Court, which in 1937 had upheld the right of states to charge a poll tax, decided in 1966 that any poll tax violated the equal protection clause.
The 25th Amendment, in the aftermath of the Kennedy assassination, provided that when the office of vice president became vacant, a new veep should be nominated by the president, with confirmation by majority votes in both houses. It also deals with a temporary transfer of presidential authority to the vice president if the president is disabled.
Which brings us to the most recently ratified amendment, the 27th, for which I offered big trivia genius points above. It’s a weird tale.
I mentioned about 800 paragraphs back that the first Congress drafted 12 amendments, 10 of which were promptly ratified and became the Bill of Rights. One of the unratified amendments, which dealt with the apportionment of representatives in the House, became irrelevant and was never ratified but, because Congress had not yet developed the practice of setting a deadline for the ratification of proposed amendments, it’s still out there in the historical ether floating around.
But the other unratified amendment lived on in forgotten limbo for more than two centuries. It was rescued from obscurity by an aide to a Texas legislator who started a new campaign to get the thing ratified in the necessary 38 states, a task he completed in 1992, slightly more than two centuries after the first Congress proposed it. It’s now the 27th Amendment (which makes it, in a sense, both the oldest and the newest of all the amendments). It provides that if Congress raises its own pay, the raise cannot take effect until after the next election.
Congratulations if you saw that coming. Your trivia genius points are in the mail.