Amendment XXVI

1:  The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

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

The final (or, more accurately, most recent) amendment to the US Constitution is the 26^th.  It lowered the national voting age from 21 to 18 years of age.

The founders initially left it up to the several states to determine various eligibility requirements for voting.  But following nearly a century of reform, including the passage of the 19^th Amendment ensuring suffrage for women and various civil rights laws operating under the auspices of the 14^th amendment, national leaders began to grapple with pressure to lower the overall voting age nationally from the generally-accepted 21 to 18.

President Eisenhower was the first chief executive to publicly support such a move, but Congress’ attempts to nationally require states to do so were met with constitutional opposition from the Supreme Court.  The High Court found that Congress had exceeded its authority under the Constitution, and that amending the Constitution would be required.

Contrary to popular belief, it wasn’t simply the anti-war movement that was pressuring national leaders to lower the voting age.  Young adults from all walks of life, who had already assumed the full mantle of adulthood (marriage, children, sole self-support, etc), were eager to ensure that they had a voice in public policy.  But it was the anti-war movement that captured the popular sentiment, with the concept that “if I’m old enough to be drafted to fight for my country, I ought to be able to vote those policies facing my country.”

The issue of the draft isn’t a small one, either.  The fact that young men were facing the possibility of involuntarily putting themselves in harm’s way is a compelling justification for allowing these same young men a voice in their own futures.

By 1971, the White House had become a champion of the push to lower the voting age as well—which, given the ire the anti-war movement felt towards the Nixon administration, was nothing short of ironic.  In fact, in one of the oddest instances of changing places, The New York Times, incapable of seeing anything good coming from the Nixon White House, came out in opposition to the lowered voting age—stating that young people were simply too immature intellectually to be good voters.

But the proposed amendment did pass Congress, and Nixon signed it in March of 1971. The amendment rocketed through state legislatures, and by July 1 it had been ratified.

The force and effect, however, has been somewhat limited.  Rates of voting for the 18-21 year old segment of the population was at its highest for the 1972 election.  After that, even considering important contributions in the 1984, 1996, and 2008 Presidential elections, voter turnout among this demographic has remained tremendously low.  Despite this fact, there are some calling for lowering the voting age even more—to 16![1]

It is doubtful that this will happen, given a host of factors—including one trend that has run parallel through the 40 year history of the under-21 vote.

While there may have been some justification in the late-1960s and early-1970s for lowering the age due to the factors facing a disenfranchised segment of the population, those factors have continued to shift.  Not only do we have an all-volunteer military, wherein nobody is forced to join without their own-free choice, but the age we consider “adult” today continues to increase.

Currently, for instance, we have the greatest percentage of individuals under 30 living in their parents’ homes.  Few have families, fewer own homes.  It has become acceptable to consider adolescence to extend well-beyond age 18, and some believe it to extend beyond 30 years of age!

This belief became enshrined now in federal public policy as well.  One of the central issues in Obamacare is the mandate to health insurance companies that they allow parents to put their children on their insurance plans up to the age of 26.  I believe such a consideration would have been unthinkable in the era when the 26^th Amendment was being considered.

Nobody is suggesting that the voting age be raised again—though many believe that young people do squander their franchise rights.  What is certain is that the 26^th Amendment is illustrative of the idea that pressing issues of the day ought not drive the amendment process.  Rarely does such tinkering with the founders’ vision produce the results that we want.

Amendment XXV

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

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.

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.

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.

The 25^th Amendment, ratified in 1967, answers open questions about presidential succession.

What happens when the president dies in office?

Under Article II, if the president is removed, dies, resigns or is unable to perform his duties, these duties fall to the vice president (section 1, clause 6). Alexander Hamilton said a vice president “may occasionally become a substitute for the president” (Federalist 68). While this seems clear, the exact status of the vice president when taking on the president’s duties or acting as a “substitute” was not certain. When William Henry Harrison died of pneumonia in 1841, Vice President John Tyler insisted on becoming the president rather than just an “acting president” as some urged. See Mark O. Hatfield, Vice Presidents of the United States, 1789-1993 (1997) at http://www.senate.gov/artandhistory/history/resources/pdf/john_tyler.pdf. All eight of the vice presidents who assumed the presidency on the death of the president followed this precedent.  Section One of the 25^th Amendment formalized the precedent, specifying that if the president is removed, dies or resigns “the Vice President shall become President.”

What happens if there is a vacancy in the vice presidency?

The eight times a president died in office and the vice president became president there was a vacancy in the vice presidency, as occurred also when seven vice presidents died in office and two resigned. See John D. Feerick, “Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment” 79 Fordham Law Review 907, 943-944 (2010). The Congressional Research Service notes, “for some twenty percent of United States history there had been no Vice President to step up.” CRS Annotated Constitution, “Twenty-fifth Amendment” at http://www.gpoaccess.gov/constitution/pdf2002/043.pdf.  Section Two of the 25^th Amendment provides the solution for these instances by allowing the president to nominate individuals to fill vacancies in the vice presidency. The person nominated can take office when a majority of the House and Senate confirmed the nomination. Gerald Ford (in 1973) and Nelson Rockefeller (in 1974) became vice presidents following this procedure.

What happens if the president knows he or she cannot fulfill the duties of the presidency?

The Constitution did not specify the procedure to follow in the case of a president being incapacitated. If the president knows of the incapacitation beforehand, as in a planned medical procedure, section Three of the 25^th Amendment allows the president to notify the President pro tempore of the Senate and Speaker of the House that the Vice President will be Acting President during a period when the president cannot fulfill the duties of that office. When ready to resume the duties, the president notifies these same officials. President George W. Bush invoked this portion of the Amendment twice for routine medical procedures.

What happens when the president is incapacitated but cannot or will not step aside and let the vice president act as president?

Before his death by assassination, President James A. Garfield lived in a coma for eighty days. President Woodrow Wilson had a debilitating stroke a year and a half before the end of his final term. President Dwight D. Eisenhower experienced a heart attack and stroke while in office. See Calvin Bellamy, “Presidential Disability: The Twenty-Fifth Amendment Still an Untried Tool” 9 Boston University Public Interest Law Journal 373, 376-377 (2000). Until, the ratification of section four of the 25^th Amendment there was no Constitutional direction for handling situations where the president could not function and could not or would not step aside. Now, 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” can notify legislative leaders of the president’s inability to fulfill the duties of the office and the vice president then begins acting as president. The president can resume office by notifying the legislative leaders that there is no inability. When the vice president (and the executive officials) disagree with the president about the president’s capacity and send dueling declarations to Congress, Congress decides the issue. Specifically, if 2/3 of members of Congress agree that the president is incapacitated, the vice president acts in the president’s stead, otherwise the president continues to function (and White House meetings are, no doubt, chilly).

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

Amendment XXIV

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.

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

A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.

In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.

The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20^th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.

The 15^th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15^th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.

Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.

Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15^th Amendment (race) and the 19^th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.

The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24^th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.

When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.

But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14^th Amendment.

The Court obviously was aware of the 24^th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24^th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14^th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24^th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14^th Amendment.

Of course, traditionally the 14^th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15^th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15^th Amendment to strike down certain voting restrictions on race earlier in the 20^th century, and did not even begin to take gingerly steps towards the 14^th Amendment until striking down the “white primaries.”

Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.

Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.

A final word about the 24^th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24^th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14^th Amendment, as it did in Harper.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Amendment XXIII

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.

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

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…….

While many Americans – including many in Washington, D.C. – may not be aware, the Founders originally contemplated that Congress would be the primary authority over any and all aspects of the nation’s capital and not the residents themselves.

The 23^rd Amendment changed the U.S. Constitution to allow residents of the District of Columbia to vote in Presidential elections.  Before the passage of this amendment, residents of Washington, D.C. were unable to vote for President or Vice President as the District is not a U.S. state. They are still unable to send voting Representatives or Senators to Congress.

Operating under the auspices of Article I, Section 8, Clause 17 [[The Congress shall have Power] To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States.] the Congress has nearly Carte Blanche to set up rules for the operation of the capital city.

The 23^rd amendment places specific limits on Congress’ authority by its expressed grant of voting rights to DC residents.  However the grant is not unlimited.  It restricts the district to the number of electors of the least populous state, irrespective of its own population. As of 2010, that is Wyoming with three Electors.

The 23^rd Amendment does not change the status of DC.  The language clearly establishes that D.C. is not a state and that its electors are only for Presidential elections. The House Report accompanying the passage of the Amendment in 1960 expressly states that the Amendment would not change the status or powers of the District:

[This] . . . amendment would change the Constitution only to the minimum extent necessary to give the District appropriate participation in national elections. It would not make the District of Columbia a State. It would not give the District of Columbia any other attributes of a State or change the constitutional powers of the Congress to legislate with respect to the District of Columbia and to prescribe its form of government. . . . It would, however, perpetuate recognition of the unique status of the District as the seat of Federal Government under the exclusive legislative control of Congress.

History shows that the government of the city of Washington and the District of Columbia have been dominated by Congress for most of the district’s history.   The Congress has expanded and restricted the franchise several times since the District’s creation.  In the 1820s Congress acted to let DC citizens vote for a Mayor and City Council.  After the Civil War changed course and created a territorial form of government for the district. All the officials, including a legislative assembly, were appointed by the president. This system was abandoned in 1874, when Congress reestablished direct control over the city government. From the 1870s forward until 1961 District residents had no rights to vote whatsoever.

The 23^rd Amendment opened the door at the Presidential level and in recent years  Congress would expand the franchise further.  First, Congress allowed DC residents to elect a School Board. In 1970, DC citizens gained a nonvoting delegate to the House of Representatives.

By 1973, Congress would pass the Home Rule Act which District residents approved in a special referendum in 1974.  This act allows citizens to elect a Mayor and City Council.

This is the present system operating in Washington, DC today.

Horace Cooper is a senior fellow with the Heartland Institute

Amendment XXII

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.

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.

“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.

The 22nd Amendment was ratified on February 27, 1951.  It places terms limits on the office of the President and provides that no US President can be elected to more than two terms. It also limits the maximum time a President may serve to 10 years, if one should succeed to the office.

The issue wasn’t new – in fact the founders had specifically considered this issue.  Proposed language limiting the number of terms our elected officials could serve was rejected three times during the Constitutional Convention. The Founding Fathers saw no reason why an effective and popular elected official should be arbitrarily forced out of office. On the contrary, the Founders thought that short terms of office — interrupted by frequent elections — would better ensure accountability than limited terms, which is why members of the House of Representatives, the branch designed to be the closest to “the people,” have to run for re-election every two years.

However at the same time instead of using a rule in the Constitution – America had the Washington precedent.  At the founding of the United States government, a clear and consistent pattern had been created by Washington – Presidents served only for two terms.   Consistent with the idea that the American president was a monarch President George Washington made clear that he had no intention of running for a third term in 1796.  This pattern stayed intact for nearly 150 years and then Franklin Delano Roosevelt was elected President.

He was first elected President in 1932, and re-elected in 1936.  The eight years that followed his first election saw the dramatic expansion of the federal government as part of his administration’s response to the Great Depression.  Although the economy had not been revitalized by 1940, many Americans – particularly Democrats – were quite impressed with the leadership he showed in transitioning the federal government from a government of limited powers to one with far more ambitious goals.  From creating a federal minimum wage and a host of public works programs to expanding federal regulation of business generally, Roosevelt fundamentally transformed the Federal Government and American society.

And since the Depression had not yet ended, Democrats were especially fearful that these changes would get rolled back so when it came time for the Democrats to nominate a candidate for the Presidency in 1940, they settled on renominating Roosevelt.  At the same time WWII had begun — even though the U.S. would not enter it until 1941

When 1944 rolled around, changing leaders in the middle of World War II, which the United States was now fully engaged in, seemed extremely unwise, and FDR ran for and was elected to an unprecedented fourth term.

However he would not complete his fifth term.  He died less than 100 days after his inauguraton.  Within a year of the war ending Congress – pressed by Republicans – determined to insure that George Washington’s self-imposed two term limit would become enshrined in the Constistution.

Specifically excepting Truman from its provisions, the 22nd Amendment passed Congress on March 21, 1947. After Truman won a second term in 1948, it was ratified on February 27, 1951 (1,439 days).

Marc Lampkin is a Vice President at Quinn Gillespie

Amendment XXI

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

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.

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.

If nothing else, the 21^st Amendment to the Constitution underscores the slippery slope that comes from both the adaptation of Constitutional prohibitions to the mores of the day, and the legal gymnastics that invariably ensue.

If you’ve already read Professor Joerg Knipprath’s excellent essay on the 18^th Amendment here at Constituting America, you understand what led to the Prohibition era in the United States.  It became clear within the matter of a decade that America’s statist experimentation with a wholesale ban on alcohol was an abject failure—but because the nation had taken the extraordinary step of banning the manufacture, sale and use of a something within the Constitution, it would take another constitutional amendment to repeal that ban.

But while this act of “liberal fascism” (as Jonah Goldberg so aptly put it) took many years to come to fruition and ratification, it was undone in a matter of mere months.  This is because the architects of the 21^st recognized something that should remain foremost in the minds of citizen activists when they are trying to figure out if politicians will do the “right thing” on issues.  They recognized that when push comes to shove, politicians will invariably be beholden to a narrow range of vocal special interests, and are thus apt to do something profoundly stupid for the rest of us.

When it comes to ratification of constitutional amendments, we are provided with two methods—the state legislature method, which had been the primary method of ratification of most of the Amendments to that point; or the state convention method.  In the case of the 21^st, the architects chose the latter.  The reason for this is simple:  the proponents of the 21^st wanted to avoid the political pressures that had, in fact, led to the adoption of the 18^th amendment in the first place.  State legislators continued to be beholden to the temperance movement, a loud group whom it was perceived held great political power.

Using a method of state conventions, the 21^st Amendment was ratified just months after it was passed by Congress.

The 2^nd section of the amendment makes manifest the axiom of the road to hell being paved with good (legal and political) intentions.  While the architects clearly wanted to do the right thing and preserve those essential elements of state sovereignty guaranteed in the 10^th Amendment, the broad, sweeping language has puzzled legal scholars and presented case after case to the courts.

Fundamentally, the questions arise as to whether or not the powers reserved to the states in section 2—to essentially decide for themselves if the state will remain “dry”, trump other rights guaranteed or powers created or reserved elsewhere in the Constitution.  Can a state ban the total use of alcohol, for instance, even in religious situations, thereby trumping both the 1^st and 14^th Amendments?  The answer is no, it can’t but it took a ruling by the Supreme Court to make that certain.

Clearly, the states have the power to exercise tremendous control over the alcohol that is manufactured and purchased within their borders.  But like all other powers in our republic, those too are limited.

America’s foray into constitutionally prohibiting the sale of a good in the marketplace offers us a helpful object lesson for those attempting just the flip-side today.  Today we’re not talking about the federal government trying to enact a sweeping ban on the sale of a good—we’re talking about attempts to enact a federal mandate on the purchase of a good:  health insurance.

Citizens implicitly understand the Constitution’s limitations in the imposition of the individual mandate:  Congress simply has no power to compel individual Americans to purchase a good.  We will most likely see the Supreme Court striking down those provisions of the recent comprehensive health care reform legislation on those very grounds.

But with almost similar certainty, when that happens, we will see a movement, similar in many respects to the Temperance movement, attempting to pass and ratify an amendment to make the compelled purchase of such a good constitutionally legal.

We know from careful study of the constitution and an implicit understanding of the concepts of limited, enumerated, and separated powers just how terrible such an amendment would be.  We need only look at the tortured history of the 18^th and 21^st amendments, and their impacts on American society and legal frameworks, to see directly what would happen if such a mandate were to come to constitutionally pass.

If there’s anything that we’ve learned from our foray into using the Constitution to tinker with both the marketplace and societal norms, it’s that it not only doesn’t work well, it has horrendous unintended consequences.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

Amendment XX

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.

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.

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.

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.

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

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.

Congress proposed the Twentieth Amendment in March 1932 and it was ratified 327 days later in January 1933. The lack of controversy surrounding the amendment’s proposal and ratification has been matched by a lack of attention to it since ratification. Unlike some other, even seemingly innocuous provisions in the Constitution, there have been no major U.S. Supreme Court cases interpreting it or significant political controversies surrounding it.

This despite the fact that it was intended to effect an important change in American political practice.

Professor Nina Mendelson explains that the main purpose of the amendment was to
increase “the responsiveness of government to the people’s will as expressed through the election.” Nina A. Mendelson, “Quick Off the Mark? In Favor of Empowering the President-Elect” 103 Northwestern University Law Review Colloquy 464, 472 (2009). The way this was to be achieved was by abolishing “lame duck” sessions of Congress.

The lame duck sessions were created by the interaction of two Constitutional provisions.

First, Article I of the Constitution originally provided that Congress would convene once a year in December (article I, section 4, clause 2). Second, prior to the Twentieth Amendment, presidential, vice-presidential and Congressional terms began in March, four months after the presidential elections. The date for the commencement of the new Constitutional officers had been set by the First Congress. The Constitution itself specified the length of the terms so, in order to be faithful to the Constitutional mandate regarding term length, newly elected officials would take office two, four and six years from the date in March the First Congress had appointed.

These two provisions taken together resulted in a long session in election years during which the president and members of Congress could continue to enact legislation and perform other functions after the election, even when those officials had been rejected by voters.

There were some obvious concerns with the lame duck sessions. For instance, the problem of accountability of elected officials to those they are meant to represent when an election has been held and an official has been rejected by voters but that official is still making law. Officials who have not been retained in office are also likely to be susceptible to other pressures, such as the need to find work following their exit from office. See John Copeland Nagle, “A Twentieth Amendment Parable” 72 N.Y.U. Law Review 470, 479 (1997).

Because the lame duck sessions were created by Constitutional provisions shortening the terms was not possible without amending the Constitution itself.

That is exactly what the Twentieth Amendment was meant to do. The Senate Judiciary Committee report on the proposed amendment specifically said one “effect of the amendment would be to abolish the so-called short session of Congress.” Congressional Research Service, Annotated Constitution: Twentieth Amendment at http://www.gpoaccess.gov/constitution/pdf2002/038.pdf.

By abolishing the lame duck sessions, the Twentieth Amendment would resolve the problems associated with them and increase the responsiveness of elected officials to their constituents.

The amendment would accomplish this by doing away with the mandatory December session, moving it instead to the subsequent January 3^rd when the amendment called for the new Congressional session to begin. The president would be inaugurated shortly thereafter. If, for instance, the November election had not resulted in a clear majority in the Electoral College, the newly elected members of Congress, rather than the old, would select the new president.

The problem is that while the framers of the Twentieth Amendment did not “expect the outgoing Congress to meet during the lame-duck period from Election Day in November until January 3” that is, in fact, what happened. Nagle at p. 485. So, even after the Twentieth Amendment was ratified, lame duck sessions continue to be held with outgoing officials enacting legislation, spending money and bailing out industries. Presidents have been particularly active during this period, issuing pardons, signing treaties and appointing judges.

The failure of the Twentieth Amendment to do away with lame duck session illustrates a truth the Founders knew well—the law cannot supply what is lacking when self-restraint fails.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

Amendment XIX

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.

It is hard to imagine that only 90 years ago, one half of the population of the United States could not vote because of their gender.  But the passage of the Nineteenth Amendment in 1920 mandated that states could no longer deny women this fundamental right.  It was named the Susan B Anthony Amendment, after the foremost leader for women’s suffrage.

On that first Election Day, November 2, 1920, single and married women, young and old, exercised a right they had fought for in their homes and churches, in town halls, and on the streets.  Polling places swelled almost beyond capacity with voters who had never before done such a thing.  Mothers, daughters, sisters, and aunts proud and eager, rushed to their polling location as early in the morning as possible, as if vying for the front row seat at the theater. Flustered by the idea of a secret ballot, one woman thought she needed to sign the back of the card. Others carried their groceries on their hips, maneuvering the crowds and chatting enthusiastically over screaming children.

The New York Times reported that while approximately one in three women, who were eligible, voted, more women than men actually voted in some districts. The Chicago Tribune credited Republican Harding’s landslide victory to the woman’s vote.

Unlike some other amendments to the constitution, the 19^th Amendment was hard fought.  For instance, the 26th Amendment passed in 1971, which granted the right to vote for citizens 18 years of age, took only 3 months and 8 days to be ratified.  As a matter of fact, of the 27 amendments to the Constitution, 7 took only 1 year or less to become the law of the land.

However, women struggled for72 years to pass the Nineteenth Amendment.  Anti suffrage organizations were most popular in the New England states.  Opponents claimed that the female brain was of inferior size.  Others claimed that women did not possess a soul.  Humorous postcards portrayed women taking too long to get all their petticoats on to get to the polls.  Some newspaper editorials said that women would only vote the way their husbands told them to anyway.

But even the movement that supported votes for women was ripe with internal dissention.  The passage of the 15^th Amendment, giving the Negro the right to vote in 1869, caused a 30 year split in the women’s movement.  Some felt that Negro suffrage should only be passed if it also gave women suffrage.  Others felt that the country was not prepared to enfranchise both and therefore women had to take a back seat.

Did the rights of the Negro have to diminish the rights of women, black and white?

That question was also being asked about women’s rights as it related to motherhood and family life.  Would freeing women to participate in government put at risk the care of children?  In other words, could the rights of all coexist?

Against this backdrop, suffrage leaders took seriously these portrayals of power and domination by their gender.  They exercised their greatest skill in combating this perception put forth by their opponents that they would abandon their children. Nowhere was this made more apparent than in their opposition to ‘Restellism,’ the term given to abortion, the most heinous form of child abandonment. It was named after the infamous abortionist Madame Restell, frequently arrested and discussed in Susan B Anthony’s publication The Revolution. Suffrage leaders saw opposition to ‘ante-natal murder’ and ‘foeticide’ as an opportunity to clear their name of unfair accusations against them by anti-vice squads, who believed the decadence of the Victorian Era lay at women’s independence.

But opposing abortion was more than a political strategy.  It was support for a human right, a right that was integral to their own.  The organizer of the first women’s rights convention in 1848, Elizabeth Cady Stanton, made these connections in a letter to suffrage leader Julia Ward Howe.  Howe believed war was the enemy of women because it destroyed their sons and husbands and brothers. Stanton made this same death connection with mothers who destroyed their children: “When we consider that women are deemed the property of men, it is degrading that we should consider our children as property to destroy as we see fit.”

Not only were anti-suffrage crusaders misinformed about the care for children that was integral to the suffrage agenda, they misunderstood that women wanted the vote not so much for their own self aggrandizement but for ‘life over material wealth’ or for the good of families and children. Child labor laws, poverty, and universal education were issues for which they sought the vote. They sought the vote for themselves because they were mothers who knew the needs of everychild. It was their maternity that they saw as their greatest gift of citizenship. As political artist J Montgomery Flagg’s winning 1913 poster proclaimed, Mothers bring all voters into the world.

Susan B Anthony did not live to see the passage of the Amendment that was named for her life’s work.  A radical young new woman leader, Alice Paul, was jailed with 66 colleagues for their protest at an event honoring President Wilson and the US participation in World War I.  This sparked the nation’s awakening and compassion, but more importantly, weakened the President’s opposition to the justice they demanded.

Paul created a flag with the suffrage colors: gold for the sunflower of Kansas (an early state to grant women suffrage), white for purity, and purple for eminence.  She sewed on it a star for each state that ratified the Amendment.  Only one more state was needed, and on August 18, 1920, Paul received a telegram proclaiming the ‘yes’ vote by the Legislature of the State of Tennessee.  Paul draped the flag over a balcony in Washington DC.  Women now could exercise the right to shape and determine the course of history.

Resources:

·         Boston Daily Globe, Nov. 3, 1920

·         NY Times, December 19, 1920

·         Chicago Daily Tribune, Nov. 3, 1920

·         Archive collection, Susan B Anthony Birthplace, Adams, MA

Carol Crossed is the Owner and President of the Susan B Anthony Birthplace Museum in Adams, Massachusetts.

Amendment XVIII

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.

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

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.

Prohibition was not a novel idea in 1919. It was part of a social reform movement, the first waves of which had lapped American shores during the middle of the 19^th century. It was a movement different from the ecclesiastical Great Awakenings that had surged periodically through the American colonies, though it shared some connection with those movements. Still, these reforms were sufficiently novel and widespread to lead Ralph Waldo Emerson to characterize them as a “war between intellect and affection” and its adherents as “young men…born with knives in their brain.”

Thirteen states had passed laws that prohibited the sale of alcohol by 1857, including, incredibly from a 20^th-century perspective, New York. Following the Civil War and abolition of slavery, the enthusiasm for social reforms in general was exhausted in favor of a general yearning for a return to normalcy. But it returned with a vengeance towards the end of the century, with prohibitionists joining women’s rights groups to combat “demon rum.” That urge fed into a broader social movement to better the human condition and, indeed, human nature. While reformation of the human soul previously had been mainly the province of religion, the remaking of human nature had become, by the 20^th century, as much a secular as a religious project. The growing middle class, “social science” movements in the study of human institutions, modern psychology, and old-style political power calculations combined in the Progressive Movement. Its adherents sought to improve human beings, as well as institutions, whether or not those human beings or institutions wanted to be improved.

The Progressives looked to the power of the state, not to individuals or private groups, to get things done efficiently. For many of their leaders, such as Princeton professor (and eventual U.S. President) Woodrow Wilson and his later advisers, such as Herbert Croly, the old institutions, such as the Constitution and the courts, were anachronisms that prevented the emergence of a better order, led by an enlightened and [P]rogressive elite. To achieve what critics then and now have characterized as totalitarianism of more or less soft type, these Progressives looked to the law as the tool to forge the new order. Law was no longer a series of constructs that reflected an inherent reason and that was useful to provide some rules to maintain a basic order in society. For the Progressives, the law was nothing less than an extension of social policy.

Alcohol prohibition also reflected the Progressive impulse to national mobilization to address issues, and the desire for a strong national government led by a strong and charismatic leader. It is not coincidental that these traits were also found in various continental European mass movements that sought to establish the new man, freed of traditional human weaknesses. The American version may have lacked some of the more pugnacious aspects of its European counterparts in Italy, Spain, Germany, and the Soviet Union, but it was close enough. As the National Review writer Jonah Goldberg has written, the period was one episode of America’s “Liberal Fascism.”

Prohibition previously had primarily been the project of the states, with Congress and the Supreme Court assisting “dry” states by declaring that their prohibitions did not violate federal control over interstate commerce. By 1913, in the Webb-Kenyon Act, Congress went further, by affirmatively forbidding the shipment of liquor in interstate commerce into dry states. Thus, prohibition became a national matter, a development also reflected in federal criminalization of drug trafficking, gambling, and prostitution. All of those were vices that the Progressives (just like their reformist ancestors) saw as products of a craven humanity that needed to be—and could be—reformed, while their critics saw such activities as necessary social safety valves, inevitable for societies composed of humans that could, at most, be nudged towards slight and gradual enlightenment at the cost of great personal effort of which most people were incapable. For the critics, laws against such behavior had the same effect as telling the tides not to come in (or commanding the sea levels not to rise).

By 1919, the Eighteenth Amendment completed the process by prohibiting the manufacture, transportation, and sale of intoxicating liquors within the United States. Later that year, Congress acted on the authority it had under that amendment and enforced national prohibition through the Volstead Act. That law set the maximum permissible alcohol content at 0.5%, an amount that outlawed anything stronger than juice from stored oranges.

In light of the negative historical reputation that has developed around Prohibition, it bears remembering that the concept was hugely popular initially. It took barely one year for the needed 36 states to approve the 18^th Amendment. However, that support turned to opposition within a very brief time, in the process raising a number of constitutional questions about that amendment specifically, and about the constitutional amendment process more generally.

A novel attribute of the 18^th Amendment was a clause that required the amendment to be adopted within 7 years. When the issue was presented to the Supreme Court in Dillon v. Gloss in 1921, Justice Willis Van Devanter upheld this limitation for a unanimous court. Van Devanter concluded this clause was not part of the amendment, but part of Congress’s resolution of submission of the amendment to the states. Therefore, such a clause did not violate Article V, which deals with amendment of the Constitution.

Van Devanter’s opinion was important for the proposed Equal Rights Amendment of the 1970s. When that amendment failed to gain passage during the time (7 years) set, Congress by a majority vote—but not two-thirds—added three years to the timetable for adoption. While this action arguably was constitutional in light of Dillon, it came at a political price. Opponents made an effective case that the extension was political overreaching, at best, and unconstitutional, at worst.

The Dillon court had also declared that it was a good idea that constitutional amendments be adopted within a certain time-frame, to reflect a dominant political consensus at a particular time. Van Devanter noted that there were still several proposed amendments that had not been ratified, including two from the original twelve in the Bill of Rights. He questioned whether such an amendment would be legitimate, if adopted after such long dormancy. That hypothetical became concrete when the 27^th Amendment (dealing with Congressional pay changes) was adopted by the requisite number of states in 1992, after two centuries of constitutional purgatory.

Interestingly, Van Devanter may have had a point because the practice has been not to allow states to rescind their approval of an amendment even though the amendment may not have been adopted on the date of the attempted rescission. Of course, states are free to approve after having previously refused to adopt the proposal. This one-way ratchet in favor of approval has little to recommend it jurisprudentially over the opposite view. It was simply the product of political necessity, when Congress refused to allow states to rescind approval of the 14^th Amendment because the unpopular and controversial amendment’s congressional supporters needed every state they could to get it past the constitutional finish line.

Another curiosity of the 18^th Amendment was that, as disillusion set in, many of the new opponents were Progressives and elites of all political stripes. Due to the perceived difficulty of repealing the amendment, they urged nullification by having the states refuse to enforce the federal laws and decline to make their own. The irony of their position was not lost on them, as they openly appealed to the success that Southerners had enjoyed with their refusal to enforce the 14^th and 15^th Amendments. Sounding like John C. Calhoun and other 19^th-century Southern apostles of nullification, these good liberals distinguished between lawbreaking and orderly, principled, majoritarian nullification.

Another question involved whether the Ohio legislature could approve the 18^th Amendment when a non-binding popular referendum had resoundingly rejected it. In Hawke v. Smith in 1920, Justice William Day’s opinion for a unanimous Supreme Court held that the legislature, voting on a constitutional amendment was performing a federal function under Article V, not a state function. Since Article V did not provide for popular referenda, the voters of Ohio had nothing to say about the matter, a proposition of some delicacy, since state legislative elections rarely turn on how a legislator proposes to vote on a federal constitutional amendment that, typically, is not submitted until after such election.

Finally, a number of opponents urged that any amendment, such as the 18^th, that curtailed individual rights, must be adopted by state constitutional conventions, not state legislatures. Though it was not expressly required by Article V, such had been the approach for the Bill of Rights. The Supreme Court rejected that argument unanimously in U.S. v. Sprague in 1931, but the argument had such political appeal that Congress directed that the repeal of prohibition through the 21^st Amendment be decided by state constitutional conventions.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

Amendment XVII

The Seventeenth Amendment, adopted April 8, 1913, provides as follows:

1: 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.

2: 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.

3: 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 first sentence substitutes “elected by the people thereof” for the words “chosen by the Legislature thereof” in the language of the first paragraph of Article 1, Sect. 3. The amendment also provides the procedure for filling vacancies by election, but permitting states by legislation to allow the state’s governor to make temporary appointments.

Prior to the 17th Amendment, the Constitution provided for US senators to be elected by the legislature of each state in order to reflect that the Senate represented the states, as contrasted with the House which represented the people of each state.  Originally, U.S. senators did represent their own states because they owed their elections to their state legislature, rather than directly to the voters of the state. The Senate, thus, carried forward the (con)federal element from the Articles of Confederation, under which only the states were represented in the national legislative body.  As noted in The Federalist, the fact that state legislatures elected U.S. senators made the states part of the federal government.  As intended, this arrangement provided protection for states against attempts by the federal government to increase and consolidate its own power. In other words, the original method of electing senators was the primary institutional protection of federalism.

In the decade prior to the Civil War, over the issue of slavery, and increasingly after the Civil War, some state legislatures failed to elect senators. That development, plus charges that senators were being elected and corrupted by corporate interests prompted some states to adopt a system of de facto election of senators, the results of which were then ratified by the state legislature.  Proposals for a constitutional amendment providing for direct popular election of senators were long blocked in the Senate because most senators were elected by state legislatures.  Over time, the number of senators elected de facto by popular election increased.  Also, states were adopting petitions for a constitutional convention to consider an amendment to provide for popular election of senators.  As the number of states came closer to the number requiring the calling of a Constitutional Convention, the Senate allowed what became the Seventeenth Amendment to be submitted to the states for ratification.

A major factor promoting direct popular election of senators was the Progressive Movement.  This movement generally criticized the Constitution’s system of separation of powers because it made it difficult to enact federal legislation. The Framers had done so in order to protect liberty and to create stability in government.  The Progressives, on the other hand, wanted government to be more democratic and, therefore, to allow easier passage of national legislation reflecting the immediate popular will.

By shifting the selection of senators to the general electorate, the 17th amendment not only accomplished those purposes; but it also meant that senators no longer needed to be as concerned about the issues favored by state legislators. Predictably, over time, senators voted for popular measures which involved “unfunded mandates” imposing the costs on the states.  Senators were able to claim political credit for the legislation, while the states were left to pay for new national policies not adopted by the states.  Such unfunded mandates would have been unthinkable prior to adoption of the 17th amendment.

Ironically, more than the required number of state legislatures ratified the 17th Amendment, with little or no realization that the Seventeenth amendment would diminish state power and undermine federalism generally.  Many legislators apparently thought they had more important matters to attend to than to devote time to the struggles that often revolved around electing a senator. Such an attitude might have been understandable at a time when the federal government had much less power vis-a-vis the states.  What those legislators did not appreciate was that the balance of power favorable to the states was due to the fact that state legislatures controlled the U.S. Senate.  Over time, since adoption of the Seventeenth Amendment, the balance of power has consistently shifted in favor of the federal government.

Dr. John S. Baker, Jr. is the Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.