In the 220+ years since it was drafted and ratified, the United States Constitution has been amended 27 times. The first 10 amendments were actually adopted prior to Vermont’s ratification of the Constitution itself (Vermont was the last of the 13 colonies to ratify), as part of a strategic concession by Federalists to secure ratification. Two of the remaining 17 amendments cancel each other out, as the 21st Amendment was adopted specifically to repeal the nationwide prohibition of alcohol established by the 18th. Another 3 amendments — the 13th, 14th, and 15th — are direct results of the Union victory in the Civil War, while the 16th (authorizing a national income tax) and the 26th (lowering the voting age to 18) are quite clearly the indirect results of two other wars — World War I and the Vietnam War, respectively. Finally, the 27th Amendment, ratified in 1992, was actually proposed in 1789 and is therefore best viewed as part of the initial pre-1804 amendments.
* This post is a follow-up to a brief post on the Tenth Amendment from last summer.
In the months between Abraham Lincoln’s election and the start of the Civil War on April 12, 1861, Americans became embroiled in something of a philosophical conversation about their relationship to their own national government. Was the American Union nothing more than a collection of states — a “club,” so to speak, that states voluntarily joined and could leave at any time and for any reason? Or was it something more — a creation of the people designed to perpetuate intact despite the desires of the people of any one state?
Abraham Lincoln addressed this issue in his First Inaugural Address as follows:
It is seventy-two years since the first inauguration of a President under our National Constitution. During that period fifteen different and greatly distinguished citizens have in succession administered the executive branch of the Government. They have conducted it through many perils, and generally with great success. Yet, with all this scope of precedent, I now enter upon the same task for the brief constitutional term of four years under great and peculiar difficulty. A disruption of the Federal Union, heretofore only menaced, is now formidably attempted.
I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our National Constitution, and the Union will endure forever, it being impossible to destroy it except by some action not provided for in the instrument itself.
Again: If the United States be not a government proper, but an association of States in the nature of contract merely, can it, as a contract, be peaceably unmade by less than all the parties who made it? One party to a contract may violate it—break it, so to speak—but does it not require all to lawfully rescind it?
Descending from these general principles, we find the proposition that in legal contemplation the Union is perpetual confirmed by the history of the Union itself. The Union is much older than the Constitution. It was formed, in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured, and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution was “to form a more perfect Union.”
But if destruction of the Union by one or by a part only of the States be lawfully possible, the Union is less perfect than before the Constitution, having lost the vital element of perpetuity.
It follows from these views that no State upon its own mere motion can lawfully get out of the Union; that resolves and ordinances to that effect are legally void, and that acts of violence within any State or States against the authority of the United States are insurrectionary or revolutionary, according to circumstances.
And going back approximately four score and seven years, James Madison, in Federalist 45, spoke on the subject in response to Antifederalist concerns about how adoption of the Constitution would affect the rights of states:
Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the governments of the individual States, that particular municipal establishments, might enjoy a certain extent of power and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the old world, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the new, in another shape — that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object.
It took a bloody Civil War over the extension of slavery to enshrine Lincoln’s vision of a Constitution that created a perpetual union and placed the states in a position clearly inferior to the national government of the people. But though you might think the issue was conclusively settled in 1865, if you listen carefully, you’ll hear echos — some subtle, some not so subtle — of the controversy persisting today.
Arguments about states rights, federalism, and even overregulation, have roots in the ongoing debate over the nature of the Union created by the Constitution. So is the (somehow) revived debate about the merits of state nullification of federal law.
Ultimately, the Constitutional language and the history are ambiguous enough on this matter (as on many others) that it’s impossible to know exactly what the Framers intended when they created the Constitution. Almost certainly, they collectively had a number of intentions, and even more certainly, some of them changed their minds over time about just what it was they had done. And whatever intentions were for America at the start, the whole American experiment was substantially redone in the 5 years following the end of the Civil War.
But despite the general ambiguity, we do have some clues. And, one of those clues is, I think, the 10th Amendment.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The 10th Amendment speaks conclusively about the reservation of powers not delegated to the national government–but it speaks ambiguously about to whom the non-delegated powers are reserved: ”to the states respectively, or to the people.”
The Articles of Confederation contained a similar provision to the 10th Amendment, which stated:
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
While its Articles of Confederation equivalent is written in the active voice, from the perspective of a state, the 10th Amendment is fully passive. The 10th Amendment is also less agressive in that it does not expressly declare each state’s independence and sovereignty, and omits the word “expressly” when referring to delegated powers (presumably to comport with the existence of the Necessary and Proper Clause in the Constitution). Finally, the 10th Amendment speaks about “the people,” whereas the Articles of Confederation provision referred only to states.
As an aside, Wikipedia — citing an article by Henry Rollins (!) describing his visit to the National Archives in Washington D.C. – asserts that the phrase (“to the people”) was added to the 10th Amendment as a handwritten edition as the draft amendment circulated between houses of Congress . . . suggesting, I’m not sure what, exactly. But it is fascinating.
I’ve long been puzzled by the existence of the “or to the people” clause of the 10th Amendment. What should we make of it?
If it was the states that formed the Constitution, and therefore the states that delegated power to the national government, why mention the people at all? If it was the people, as a national whole, who formed the national government and delegated its powers, why mention the states? Maybe the drafters and ratifiers of the 10th Amendment (and we should remember, we’re technically talking Congress in 1791, not the Constitutional Convention) conceived of the national government is a creation of the people, who have delegated some power to their state and local governments and some power to their national government, and, as a result, retain whatever powers they have not delegated. Therefore, to the extent people have not already delegated power to any particular level of government, that power resides in the people. Or maybe the phrase “or to the people” was added simply to make it clear that the 10th Amendment encompassed all rights — rights that the people could delegate to their government (i.e., rights involving the exercise of coercive authority) and rights that they really couldn’t because they are conceived of as residing in individuals (e.g., the rights to speak and worship). Of course, the ambiguity could always be a matter of political expediency — perhaps the ratifiers couldn’t agree on what to put in the 10th Amendment and therefore comprised by including both the states and the people as the beneficiaries of reserved powers?
But — to me — the fact that the 10th Amendment mentions both the states and the people counts for something.
How much significance does this all have? I’m not sure. But it seems to me that the 10th Amendment’s ambiguity lends support Lincoln’s conception of the American Union (even pre-Civil War) and whatever consequences that may have.
When the Constitution was first ratified in 1791, it provided that United States senators were selected by the legislatures of the individual states. In 1913, the states ratified the 17th Amendment, which required senators to be elected by the people of the several states.
For most of the almost 100 years that have passed since the 17th Amendment was ratified, it has been largely ignored; the business of government has moved on and the amendment has received little comment — especially in comparison to the amendments which bookend it (the 16th Amendment, which authorizes a national income tax; and the 18th Amendment, which constitutionalized Prohibition).
Recently, however, the 17th Amendment has become something of a cause de jour, garnering a good deal of attention from today’s limited government federalists who, confronted by what they view as massive, unconstitutional federal overreach, find in the 17th Amendment a principal villan.
Why don’t they like the 17th Amendment?
Anti-17th-ers believe that the 17th Amendment dealt state sovereignty a death blow. According to them, the Founders, as a check on national government supremacy, structured the Senate to represent the interests of the states, in contrast to the popularly elected President (well, kind of) and House of Representatives. But this carefully constructed balance was all undone, they say, by the direct election of senators. Rather than being the champion of state sovereignty in the national government, as the Founders intended, they argue that the Senate is now little more than House of Representatives-lite, the only difference between the two bodies is the length of term and breadth of constituency. And the Anti-17th crowd can point to the American historical timeline in support of their claims: the temporal convergence of the ratification of the 17th Amendment; the ascendency of social welfare legislation; the adoption of the 16th Amendment, which authorized a national income tax; and the expansion of the national government begun during WWI. They have a point when they say that the states have never been quite the same since.
So, are they right? Is one of the keys to a meaningful federalism is indirect election of senators? And have we betrayed our constitutional heritage by adopting the 17th Amendment?
I don’t think so.
17th Amendment = Decline of State Sovereignty?
The concentration of policy and power in the national government is not in any way, shape, or form a result of the elimination of a state check on national authority. Instead, it’s due to a combination of factors, the most important of which are the superior resources of the federal government, the civil rights movement, the judiciary preferring to take a very hands-off approach to Congressional action, and people demanding national-level policy on a whole host of issues.
To the extent indirect election of Senators and the movement of the center of government toward Washington, D.C., are related, it’s because they are both victims of the 20th Century progressive, internationalist turn in American politics, not because one was a cause (in any meaningful sense) the other.
Inconsistent with Original Intent?
Furthermore, the evidence that the Founders left the election of senators with state legislators in order to protect states from the national government is scant at best, resting essentially on a single statement by George Mason. The fifth resolution of Madison’s Virginia Plan (which was used to frame the debates at the Constitutional Convention) provided that “members of the second branch of the National Legislature ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures.”
In other words, Madison proposed that that each state’s House delegation choose its senators. From the beginning, the Founders fixated on indirect election of the Senate, never seriously considering having senators be elected directly by the people. Why? Because they assumed that indirect election would result in more virtuous men serving in the Senate (i.e., they distrusted the people) and thought statewide popular elections were impractical. While the delegates considered other indirect options for choosing senators — including having senators elected by the House or appointed by the President — they rejected them all because they would compromise the principle of separation of powers. In short, there’s little or not\ evidence that they placed the responsibility to elect senator on state legislatures out of an overriding concern for state sovereignty — there was no just where else to put the responsibility other than the people.
Direct or Indirect?
Are we better off with the 17th Amendment? Or would we be better off repealing it?
I think we’re better off where we’re at.
I don’t know that indirect election of senators would have many significant policy impacts at the federal level. Does anyone really believe that the Vermont senate delegation, if elected by the Vermont legislature, would play a watchdog role on the federal government? Or that the Utah senate delegation, if elected by the Utah state legislature, would come down on states rights any different than it already does? If the people want national level policy, they’ll get it. If they want to return power to the states by limiting the federal sphere of action, they’ll get that, too (witness Mike Lee, Rand Paul, et al)
Furthermore, when senators are elected by state legislatures, state legislatures are tied to Congress. With indirect election of senators, you run the risk of making the position of state legislator at least as much about federal elections as state policymaking. In addition to campaigning to state legislators, Senate candidates would campaign to the people on behalf of their friends who are either in the state legislature or campaigning for the state legislature. During at least two election cycles every six years, we would elect state legislators based primarily on who they would support for senator in the next election.
There is also an increased potential for corruption. Indeed, the fear that state legislatures were “selling” Senate seats is one of the reasons commonly given for adopting the 17th Amendment. While there is some dispute over the frequency this actually occurred, it was a reason that resonated with the public. Returning the election to the people eliminates, if nothing else, the appearance of corruption on this basis.
Finally, a Republican form of government is supposed to be about people electing a representative to govern for them, not about a representatives electing other representatives. The Founders set things up the way they did because they thought the probability of more enlightened representation outweighed moving the government a bit further from the people. Turns out that it’s pretty clear they were overly optimistic on this point and overly pessimistic on some others. Indirect election of public officials distances the people from their representatives and erodes confidence in government.
Let’s remember that this government is about people, not states. We can have (and restore, to the extent it’s been lost) a meaningful federalism in America whether or not Senators are elected directly by the people.
The 17th Amendment was a good amendment to the Constitution and should be left alone.
Lessons in American Constitutional History, Post-1787: Volume 2 — Some Thoughts on The Fourteenth Amendment
Despite the noise coming from groups like the Article I Society and Tea Party constitutional federalists, the center of American constitutional law is not Article I, Section 8 of the Constitution — it’s the Constitution’s Fourteenth Amendment — more accurately, in Section 1 of the Fourteenth Amendment — ratified nearly 80 after the drafting of the original document.
As a friend recently told me, the Fourteenth Amendment is (thus far, anyway) the culmination of the American and English constitutional traditions; it’s the true protection for individual rights that was only foreshadowed by even the most significant of the amendments contained in the Bill of Rights.
I’ve quoted Section 1 of the Fourteenth Amendment before and I’ll continue to quote it again. Here’s what it says:
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.
Now, I’m no Fourteenth Amendment expert, and I’m not here to give a detailed history, but I do want to take a few minutes and offer some of my thoughts on what it does and why it matters so much.
One way of looking at the Fourteenth Amendment is that it simply takes the restrictions on Congress found into the Bill of Rights and applies them to the states, adding the additional requirement of equal protection. This view, though not altogether wrong, doesn’t really capture the full essence of the sea change that the Fourteenth Amendment wrought in American constitutional law, for a number of reasons.
First, it seems to suggest that the Equal Protection Clause is a little bit of an afterthought, which couldn’t be further from the truth. As even a casual observer of constitutional law can tell you, equal protection is the primary ground on which most constitutional battles are fought today. It’s an incredibly significant addition that has helped frame the debate over many of the most important constitutional and societal questions of the last 100 years.
Second, unlike the Bill of Rights, the Fourteenth Amendment was adopted at a time when judicial review was an acknowledged fact, and, as such, amounts to a clear, intentional, and fundamental realignment of the relationship between the national and state governments. Even if, at the time of the Founding and prior to the Civil War, the (a?) primary concern of those who drafted the Constitution had been preserving the sphere of sovereignty of the states from encroachment by the national government, since the ratification of the Fourteenth Amendment it is clear that the foremost constitutional concern was the rights of individuals and not the sovereignty of the states. Indeed, the Fourteenth Amendment made clear made clear that restrictions on government power are real substantive limits on what government can do, and not just guidelines about where certain laws must originate.
Finally, and although this one may not get much press, it is the Fourteenth Amendment that has ultimately resulted in infusing the Due Process Clauses with content. This one deserves a separate post all its own (and will get one if my schedule allows), but suffice it to say the clear import of what the Fourteenth Amendment was designed to accomplish, combined with a very limited Supreme Court interpretation of the amendment’s Privileges or Immunities Clause in the Slaughterhouse Cases forced some arguments onto a more awkward ground and gave us what we refer to today as substantive due process.
So, in all the Constitution-reading that goes on these days, take some time to move beyond Article I and the Bill of Rights, and spend some time with the Fourteenth Amendment, the cornerstone of America’s Second Founding.
This is the first in a somewhat random series of posts about constitutional insights provided by people other than the Founding Fathers. For all the constitutional rhetoric we get out of Tea Party groups about the meaning and purpose of the Constitution, they, by and large, ignore everything that’s a part of our constitutional tradition post-1787, because it’s irrelevant in their mind to the holy grail of Constitutional interpretation: Original intent, . . . or original meaning, . . . or original understanding, . . . or, to put it more inclusively and ambiguously, originalism.
I’m a believer in adherence to original meaning where it can be clearly ascertained against alternatives, but disagree with a number of my friends who discount America’s subsequent-to-the-Founding constitutional history. It’s sad that very sincere lovers of our Constitution often know very little about the men and women who have shaped the Constitution and our perception of it during the last 225 years. It is, at the very least, unfortunate, because it prevents its disciples from being exposed to most of America’s constitutional tradition and some of the really important insights regarding what the Constitution is and what it does.
And so, with that disclaimer and without any further ado, I present Volume 1 in my new series, Lessons in American Constitutional History, Post-1787, where I introduce my founding constitutionalist friends to Justice Robert H. Jackson, a Roosevelt (gasp! — yes, that Roosevelt) appointee to the Supreme Court, one of the chief prosecutors at the Nuremberg War Crimes Tribunal, and the last person appointed to the United States Supreme Court who did not graduate from law school (emphasis in the quotations below is all mine):
From West Virginia State Board of Education v. Barnett, a case involving a challenge to mandatory reading of the pledge of allegiance in public school:
The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
Youngstown Sheet & Tube Co. v. Sawyer, a case involving President Truman’s seizure of steel mills when faced with the likelihood of a steel union’s strike during the Korean War — ironically pitting my favorite Supreme Court Justice against one of my very favorite Presidents):
The actual art of governing under out Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government, as an undivided whole, lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
2. When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.
3. When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
And finally, from United States v. Korematsu, a case where the Court was asked to evaluate the constitutionality of a military order interning Americans of Japanese ancestry at the outset of U.S. involvement in World War II:
In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence, courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.