“Were You Using that Freedom? (Part I)” was the first of this series of articles. It presents the Bill of Rights … the first 10 Amendments to the Constitution of the United States. If you haven’t read that article, you might want to read it before starting this one.
Assuming that you’ve read Part I, we’ll continue with the next Amendment.
The Eleventh Amendment
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
In 1793, the Supreme Court heard and ruled on a case known as Chisholm v. Georgia. Chisholm was executor of the estate of a man named Farquhar. Farquhar had supplied goods to the state of Georgia. Georgia had not paid for those goods. Chisholm sued Georgia for payment to Farquhar’s estate.
The Court concluded that Article III, Section 2 of the Constitution overrode Georgia’s sovereign immunity and ruled in Chisholm’s favor. Ratification of the 11th Amendment in 1795 removed federal jurisdiction in cases where a citizen of one state sues another state. This restored sovereign immunity. The amendment does not explicitly state whether one may legally launch a case against one’s own state. In the 1890 case Hans v. Louisiana the Supreme Court ruled that the 11th Amendment also prohibits a citizen from suing his own state.
There are only two situations wherein a state can be sued by someone outside that state:
- You can sue a state if the state gives you permission.
- Congress can override a state’s sovereign immunity if it’s done in accordance with its power to enforce 14th Amendment guarantees (see below). The Supreme Court decided this in the 1976 case, Fitzpatrick v. Bitzer.
Sovereign immunity seems like a rather odd concept. It derives from international law protecting the ruler of one country from being brought before the court of another country. (Diplomatic immunity is probably related to the same concept.)
To us, the idea that the concept should apply between two of the United States seems odd, but things were different when it was passed in 1794 and ratified in 1797. Back then, the battle between Federalists and Anti-Federalists was still fresh. The Anti-Federalists saw the union as a confederation of independent states. To them, sovereign immunity among the states made perfect sense. Although we hear people in Congress talking about “states’ rights” from time to time today, the Federalists won the argument for the most part.
The Twelfth Amendment
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Article II of the Constitution defines the procedure by which the Electoral College selects the President and Vice President. Essentially, the Electors were to vote for two persons. The person with the highest number of votes would be the President; the person with the second highest number of votes would be the Vice President. (There are requirements regarding majorities, tie-breaking, etc., but that’s not important for the discussion of the 12th Amendment.)
The Framers of the Constitution didn’t foresee the formation of political parties (poor, naive Framers). Everything went according to plan for the 1788 and 1792 quadrennial Presidential elections, then a terrible thing happened. George Washington, the one person in the country who could run uncontested, refused to run for a third term.
In 1796, the Federalists backed John Adams, the current Vice President, for President and former South Carolina Governor Thomas Pinckney for Vice President. George Washington’s Secretary of State, Thomas Jefferson, formed an opposing political party, the Democratic-Republicans, and ran as their Presidential candidate. New York Senator Aaron Burr was that party’s hopeful for Vice President.
With President and Vice President being defined as the persons with the first and second highest number of electoral votes respectively, electing both from the same party is tricky. In 1796, after one of the most acrimonious campaigns in U. S. history, Adams received the most votes and Jefferson the second most. John Adams became the President; his opponent, Thomas Jefferson, became Vice President.
In 1800, the Federalists were fighting among themselves while the Democratic-Republicans were focused and well-organized. The Democratic-Republicans formed a plan wherein all electors would vote for Jefferson and all but one would vote for Burr. As it turned out, all who voted for Jefferson voted for Burr as well. As defined in the Constitution, the tie went to the House of Representatives for resolution. It took 36 ballots to pick a winner. Thomas Jefferson became the third President of the United States of America.
Something had to be done to accommodate party politics. The 12th Amendment was that something. By having the Electors vote for a President and a Vice President … rather than two possibilities for President … the Amendment allowed for running mates and reduced the probability of a two-party Administration. (It’s still theoretically possible for the President and Vice President to be from different parties, but most states have laws forbidding their Electors for splitting their votes between parties.)
The number of Electors of any state is the same as their total representation in Congress. There are 100 Senators and 435 members of the House … plus 3 Electors for the District of Columbia. Hence, there are currently 538 Electoral votes nationwide. A 270 vote majority is required for both the President and the Vice President. If no candidate gets a majority, the House of Representatives chooses between the two Presidential candidates with the largest number of Electoral votes. The Senate uses the same procedure to select the Vice President.
This is another way that we could still end up with a two-party administration. If the House and Senate were dominated by opposing parties, the House might select a President from one party while the Senate selects a Vice President from another. Of course, Congress would never do something like that. Our elected representatives would never put party politics above what’s better for the country. Would they?
The Thirteenth Amendment
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
The 13th Amendment abolishes slavery and any other form of involuntary servitude and grants Congress the authority enforce that abolition. The language in the Amendment is straight-forward and unambiguous. The only thing it took to have it proposed, passed, and ratified was the deaths of three quarter of a million Americans in the worst war in our history.
The Fourteenth Amendment
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Controversy surrounding this section crosses political lines. A great many Americans, Conservatives and Liberals alike, do not like the implications inherent in the words:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …
These words state that anyone born within the boundaries of the United States are citizens of the United States. (Yes, Attorney General Sessions, that includes that “island in the Pacific“. It’s called Hawaii and it’s a one of the United States. Alaska is a state too.) Although it has never been tested in the Supreme Court, it’s generally accepted that “anyone” includes children of undocumented residents. (The 14th Amendment does not apply to children who were brought here by their parents … the so-called DREAMers …; only to those born in the United States.)
Another “problem” with Section 1 is the phrase:
… 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.
It doesn’t say “citizen”. It says “person”. You do not need to be a citizen in order to be entitled to protection under the law. You just need to be a person. The word “person” (or “persons”) appears earlier in Amendments 4, 5, and 12 … and will appear later in Amendments 20 and 22, but it is in the 14th Amendment that it is directly connected to “due process of law”. Regardless of your country of citizenship, if you are in the United States, you are subject to and protected by the Constitution.
This section specifies that:
- A state’s representation in the House shall be determined by the state’s whole number of persons. The word “whole” is important. Before the Civil War and passage of the 13th Amendment, a slave had been counted as 3/5 of a person when determining a state’s representation. Now, as free citizens of the United States, they would be counted as whole persons … as they always should have been.
- The vote can be denied to those who have committed rebellion or “other crimes”. (Presumably, what “other crimes” eliminate one’s right to vote was left to the future … and to the courts.)
- If a state denies the vote to any eligible, 21 year-old male, representation in the House would be proportionately reduced. (Women would have to wait for the 19th Amendment.) It’s interesting to note that this section doesn’t say that a state may not deny the vote to any eligible voter; just that the state will lose a part of their representation by doing so.
Before the Civil War, all states had representation in Congress according to the rules defined in Article I of the Constitution … House representation proportional to state population and two Senators. Each of these officials had been “bound by Oath or Affirmation, to support this Constitution” as stated in Article VI. All state officials and all members of all levels of the Judiciary were similarly “bound by Oath or Affirmation”.
Those who went with their states to form the Confederate States of America had violated that commitment. These former officials were not permitted to hold public office at any level of State or Federal government unless they were forgiven by a 2/3 vote of both houses of Congress.
The Federal Government and all States were required to pay all legally authorized debts incurred by the United States of America during the Civil War. All debts incurred by the Confederate States of America were illegal and void. Those who were owed money by the winners would be paid. Those who were owed money by the losers would receive nothing.
As with the 13th Amendment, Congress is given the power to enforce this Amendment. (We’ll see variations of “Congress shall have power to enforce this article by appropriate legislation” at the end of many amendments that follow.)
The Fifteenth Amendment
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Like the 13th Amendment, the wording of the 15th is straight-forward and unambiguous. If you’re a citizen, you have the right to vote regardless of your race, skin pigmentation, or former designation as “property”. (Of course, you still had to be male. Women would not have the vote for another 50 years.) This amendment was obviously intended to address the voting rights of former slaves, but is sufficiently generalized to apply to all races and all skin colors … even the once blue-skinned Fugate Family. Again, Congress was given the power and responsibility of enforcement.
Passed in the five years following the Civil Wars, the 13th, 14th, and 15th Amendments are called the Reconstruction Amendments. They were intended to convert a country that had been “half slave and half free” to one where all who had been born here or naturalized (and adult males) were citizens with equal rights and equal participation in the government.
Since that time, there have been many attempts to subvert those intentions. Those efforts continue using the tried and true method of gerrymandering and have been recently justified as fighting voter fraud.
In the 2016 election, Donald Trump won the Electoral College vote and, therefore, the Presidency. At the same time, Hillary Clinton won the popular vote. In most states, when you win more than 50% of the popular vote, you win all of the electoral votes. Any popular votes beyond that in that state are just fluff. Narrow wins in enough big states are as good as a landslide. Donald Trump did that and became our Constitutionally-elected President.
Unfortunately, our President is the kind of person who doesn’t like to lose even an irrelevant contest. Why did he lose the popular vote? To him, it’s not because he and his team ran a campaign that made good use of the Constitutional rules needed to win the election. To him, it’s because of millions of fraudulent votes for Hillary Clinton. Despite anecdotal reports, studies have shown that voter fraud is not a serious problem. Claims of voter fraud are excuses for voting rules designed to disenfranchise people opposed to the party in power … usually non-whites and poor people.
The Sixteenth Amendment
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
At first glance, most citizens would like to repeal this amendment. It’s the one that legalizes Federal Income Tax. Prior to the ratification of this amendment in February of 1913, government funding came from tariffs with a little help from excise taxes. Why not go back to those … or a national sales tax … or a value-added tax … or just tax businesses rather than people? The main reason that none of these alternatives works is that they put an unfair burden on the poor. The fewer resources you have; the greater the portion of those resources you have to devote to survival. A graduated income tax (also known as a progressive income tax) on income can compensate for that imbalance.
Whether you want the Federal government to focus on defense and security or social programs or job creation or scientific advancement or, more likely, some combination of these and other concerns, the Federal government needs resources. The problem isn’t with the income tax; it’s with the complexity and inequities in our tax laws. Many iterations of Congress have struggled with these problems. The struggle continues.
The Seventeenth Amendment
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
Article I of the Constitution specified that a state’s Senators were to be elected by the states’ legislatures. The 17th Amendment, passed in 1912 and ratified in 1913, changed that. After its ratification, Senators would be elected by popular vote. It changed the way senatorial vacancies were to be handled as well. State Legislatures could authorize their state’s Governor to appoint a temporary replacement until the state is able to hold a special election.
The Eighteenth Amendment
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
The party was over! As specified in Section 1, within a year of the ratification of the 18th Amendment, alcoholic beverages were prohibited within the United States of America and its Territories. It wouldn’t last (see 21st Amendment), but for the next 13 years, 10 months, and 15 days, you couldn’t get a drink in the United States … well, not legally anyway.
A lot of people still wanted to consume alcoholic beverages … but, doing so was not only illegal, it violated the Constitution. The results of this conflict between public will and Federal law were not too surprising:
- Ordinary citizens from all levels of society became criminals.
- Enforcing the 18th Amendment became more form than substance. Consumption of alcohol went underground.
- With law enforcement overwhelmed, organized crime rushed in to fill the vacuum of supplying liquor to unlicensed saloons commonly known as speakeasys.
Crimes resulting from alcohol consumption (person-on-person violence) dropped. Crime related to the production and distributing of alcohol (gang-on-gang violence) rose.
Thanks to “Yankee Ingenuity“, some companies that produced alcoholic beverages survived. Some liquor companies made “medicinal alcohol” which was still legal. (It’s not clear how much of their produce was used for medicine.) Breweries produced a variety of other goods … everything from ceramics to ice cream to non-alcoholic malt beverages.
Prohibition was an experiment that failed. The 18th Amendment would be the only amendment (so far) that had to be repealed by a later amendment.
The Nineteenth Amendment
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.
The 19th Amendment was introduced to Congress in 1878 … but not passed to the states for ratification until 1919. It was ratified and adopted on August 18, 1920. One hundred and forty-four years after the Declaration of Independence; One hundred and thirty-three years after the Constitution; Fifty-two years after the 14th Amendment, women had finally won the right to vote … but, have yet to gain full equality under the law.
In 1972, the Equal Rights Amendment (ERA) passed both houses of Congress and was submitted to the states for ratification … with a ratification deadline of March 22, 1979. It read:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
By two years before the ERA’s ratification deadline, it had received ratification from 92% of the states needed. Later opposition to the amendment led 4 states to rescind their ratification. Congress extended the deadline to 1982, but no more states ratified the ERA. It seemed that the amendment had died …
… but, the states have not given up. On March 22, 2017, Nevada became the first state in 40 years to ratify the ERA.
Twenty-four states have enacted their own Equal Rights amendments or constitutional laws. I particularly like Montana’s and Wyoming’s because they, more than any of the others, attempt to erase all possible sources of inequality:
Montana – Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas. Montana Constitution, Article II, §4 (1973)
Wyoming – In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal. Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than the individual incompetency or unworthiness duly ascertained by a court of competent jurisdiction. The rights of citizens of the state of Wyoming to vote and hold office shall not be denied or abridged on account of sex. Both male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges. Wyoming Constitution, Articles I and VI (1890)
Maybe the current form of the ERA is too limited for the 21st Century. What about LGBT people? What about ex-criminals? In some states, those who have paid their debt to society regain their full rights; in others they don’t. What about persons living in U.S. Territories? Some are citizens; some are not. Most do not have the representation afforded to those living in the states. Even those living in Washington, D.C. have less than full representation in Congress. Isn’t it time to grant full citizenship to all persons in all territories and the District of Columbia? Isn’t it time to introduce, pass, and ratify an Equal Rights Amendment that covers all of us who are citizens of the United States?
The Twentieth Amendment
Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
Section 2. The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3rd day of January, unless they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.
Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
After the ratification of the Constitution, Congress set March 4th as the date when the term of a newly elected Congress and Presidential Administration would begin. By 1845, election day had been moved to a single day early in November. This created a four-month “lame duck” Congress and President. The 20th Amendment reset the start of a new Congress to January 3rd and that of a new Presidential Administration to January 20th. The crippled water fowl in Congress and the Presidency would only plague us for approximately 2 and 2 1/2 months respectively.
Section 3 defines what to do if there is no President-elect … because the President-elect has died or has failed to qualify or has not been chosen by Inauguration Day.
In the 21st Century, determining that the President-elect has died is not too complicated. All of cable news and half of the internet will be letting us know within minutes of the President-elect’s last breath.
Article II, Section 1, Clause 5 of the Constitution specifies these requirements for qualifying to be President:
No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.
As we’ll see later, the 22nd Amendment added term limits to the qualifications.
The President-elect may not be chosen in time for several reasons:
- A disputed election like the one in 2000 could delay the Electoral College vote.
- A strong 3rd-party candidate like Ross Perot in 1992 could prevent anyone from winning more than half of the Electoral votes.
- The Electoral vote could be a draw sending Presidential selection to the House of Representatives.
Section 4 is a reiteration and clarification of Article II, Section 1, Clause 6 of the Constitution giving Congress the responsibility of handling the selection of the President and Vice President “whenever the right of choice shall have devolved upon them”. The Presidential Succession Act passed in 1947 and the 25th Amendment provide additional rules on how and when Congress may make the selections.
Sections 5 and 6 respectively define when the amendment will become effective if ratified and set a time limit for ratification.
The Twenty-First Amendment
Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
To put it simply, the 21st Amendment repeals the 18th Amendment. (This is the only time in our history that one amendment has completely canceled another.) When the 21st Amendment was ratified, America’s experiment with the prohibition was ended.
As with any other drug, alcohol consumption was and is associated with a number of social and medical problems, but total prohibition was not the answer. Regulation and Education have been more effective in dealing with alcohol use. A number of states are trying a similar approach with marijuana (in spite of Federal laws). Education has seriously reduced the use of tobacco. Many locales are treating their opioid crises as illness rather than weakness and crime. Prohibition wasn’t the answer …, but it has helped us to learn.
The Twenty-second Amendment
Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once. But this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.
Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several states within seven years from the date of its submission to the states by the Congress.
The 22nd Amendment limits Presidents to two elected terms … plus up to two years completion of someone else’s term. (Having become President after President John F. Kennedy‘s assassination on November 23, 1963, President Lyndon B. Johnson could have been President for 8 years and 2 months, but chose not to seek a second term of his own.)
The amendment was a reaction to President Franklin D. Roosevelt‘s unprecedented 4 elected terms, but concern about limiting a President’s term had come up repeatedly almost since the beginning of the republic. Although our first president retired after two terms because of his age, most of those who followed adhered to a two term limit. A few tried for a third term, but none succeeded until Roosevelt. President Harry S. Truman served more than 2 and 3/4 of Roosevelt’s fourth term. The 22nd Amendment was ratified on February 27, 1951, making Truman ineligible for the 1952 Presidential election.
The Twenty-third Amendment
Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Most citizens of the United States are also citizens of some state. Those citizens who live in Washington, D.C., are not. Until this amendment was ratified on March 29, 1961, United States citizens who were permanent residents of the District of Columbia could not vote for the President and Vice President. Henceforth, the District could vote for the number of presidential electors to which it would be entitled if it were a state …, but no more than the number allotted to the state with the smallest population. As of the 2010 Census, 7 states and the District of Columbia each have the minimum possible number of electors … 3.
Citizens of Washington, D.C. can vote for President now, but they still have no voting representation in Congress. They have one non-voting Representative in the House and nobody in the Senate. They have no real Federal representation, but they do pay taxes. Wasn’t taxation without representation a major reason for the Revolutionary War and the creation of the United States of America?
Washington, D.C. is only the beginning. There are Americans living in four United States territories … Guam, the U.S. Virgin Islands, the Northern Mariana Islands, and Puerto Rico who are full citizens in every respect except two … they cannot vote for the President and Vice President and, like citizens of the District of Columbia, they have no real representation in Congress. These citizens do vote in Presidential primaries. (The rules for Primaries are not set by the Federal Government.) American Samoans have it even worse. They are U.S. nationals, but not citizens … unless one of their parents is a citizen. Fourteenth Amendment birthright citizenship does not apply.
I think we need legislation … maybe another Constitutional Amendment … to make sure all Americans have equal rights and responsibilities.
The Twenty-fourth Amendment
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
During the late 19th Century, after the Democratic Party had regained control of the legislatures of the former Confederate States, many of those state legislatures passed laws that required voters to pay a poll tax. If you couldn’t afford to pay the tax, you weren’t allowed to vote. African Americans and all other poor people were effectively disenfranchised.
In 1937, the Supreme Court decided that poll taxes did not violate the Constitution. Ratification of the 24th Amendment on January 23, 1964 changed that. Congress and 38 states declared poll taxes to be illegal.
The Democratic “Solid South” took their turn at voter suppression after Reconstruction. Now, the “Republican” Trump Administration has taken its turn by establishing a Voter Fraud Commission. (I put the word Republican in quotes to avoid offending members of that party who have not drunk the Kool-Aid.) Never mind that there’s little evidence of extensive voter fraud. Never mind that the commission’s proposed master voter data base is an open invitation to hackers. Has anyone considered that the information that the commission has requested could be used to create an “enemies list” that would have made Richard Nixon blush? Should any President have access to so much information about all of us at his fingertips?
The Twenty-fifth Amendment
Section 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
Section 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
Article II, Section 1, Clause 6 of the Constitution states that the duties of the President “shall devolve on the Vice President” if, for any reason, the President cannot fulfill those duties. The clause does not specify whether the Vice President shall become the President or simply the Acting President. Section 1 of the 25th Amendment corrects that lack of specificity. If the President is removed from office, resigns, or dies, the Vice President becomes the President. Although the amendment wasn’t proposed until July 6, 1965 and wasn’t ratified until February 10, 1967, succession of the Vice President to the Presidency was already the practice. In the 20th Century, five Vice Presidents became President when their predecessor could no longer serve. (Three of the five occurred within my lifetime. The years from 1945 through 1974 were particularly hard on Presidents.)
- In 1901, Theodore Roosevelt became President after William McKinley was assassinated.
- In 1923, Calvin Coolidge became President after Warren Harding died of a heart attack.
- In 1945, Harry Truman became President after Franklin Roosevelt died of a cerebral hemorrhage.
- In 1963, Lyndon Johnson became President after John Kennedy was assassinated.
- In 1974, Gerald Ford became President after Richard Nixon resigned. (This was the first Vice Presidential succession to occur under the 25th Amendment.)
Section 2 defines how a Vice Presidential vacancy is to be filled … the President chooses a new Vice President who must then be confirmed by both Houses of Congress. This procedure has been used twice since the amendment’s ratification. Both were related the Nixon Administration.
- In 1973, Richard Nixon nominated Gerald Ford after Spiro Agnew resigned.
- In 1974, Gerald Ford became President and nominated Nelson Rockefeller to be his Vice President.
Section 3 defines the procedure by which a President can declare the he is unable to perform his duties. In this case, the Vice President becomes the Acting President. This section has been used three times.
- In 1985, Vice President George H. W. Bush became Acting President while President Ronald Reagan underwent a colonoscopy and follow-up surgery.
- In 2002, Vice President Dick Cheney became Acting President while President George W. Bush underwent a colonoscopy.
- In 2007, Vice President Cheney became Acting President for the same reason.
The fact that both Presidents and their Vice Presidents used Section 3 in relation to colonoscopies should not be construed to indicate what any of them think should be done with that section of the 25th Amendment.
Section 4 defines how the Vice President and a majority of the President’s cabinet can declare the President to be unable to do his job. The President may “disagree” with their decision. The Vice President and Cabinet can then ask Congress to decide. A 2/3 vote of both Houses agreeing that the President is unable to perform his duties is required. Thereafter, the Vice President becomes the Acting President just as he would have if the President had stepped aside voluntarily.
The most likely reason for invoking this section would be if the President was unable to voluntarily pass his duties to the Vice President. It has never been invoked but probably should have been while President Reagan was in surgery after John Hinckley, Jr. tried to assassinate him. Section 4 does not require that the President be unable to respond. In fact, it gives the President the opportunity to contest the decision of the Vice President and Cabinet. The section has never been tested in this way. Maybe it should be.
The Twenty-sixth Amendment
Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
For 16 years, Congress and the President were drafting young people to fight and possibly die in Vietnam. Most of those young people were below the voting age of 21. They had the “privilege” of dying for their country, but neither the privilege nor the responsibility for deciding who should make the decisions about running their country. That changed in 1971. Proposed in March and ratified by July (fewer than 4 months), the 26th Amendment guaranteed the right to vote to anyone over the age of 18.
Although my brother and I were both over the age of 21 by the time this amendment became law, our younger sister was allowed to vote in the 1972 Presidential election because of it. I have never forgotten these years … and have never failed to exercise my right to vote. Even if I don’t like either of the candidates, I pick the least offensive. I believe that I can’t complain if I don’t participate … and my readers know that I like to complain.
The Twenty-seventh Amendment
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
Congress proposed the 27th Amendment on September 25, 1789. It became part of the Constitution on May 5, 1992 … 202 years, 7 months, and 10 days later. When I first read about this delay (months ago), my reaction was to blame Congress. Now that I understand the how the Constitution is amended, I realize that it was the states that “dropped the ball“.
Two cases based on the 27th Amendment have questioned Congressional cost-of-living increases. Lower courts denied the validity of both cases. The Supreme Court did not hear either case. I wonder if Congressional cost-of-living increases are based on the same statistics as Social Security cost-of-living increases. Somehow, I doubt it.
As I end this article in July 2017, the 27th Amendment is the last one we have. It won’t remain the last. Those who framed the Constitution wanted a living document. They could not know how the country would grow and change, but they believed it should always be a country of laws rather than of men.
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