▸ IN THEIR EFFORT TO GAIN Antifederalists’ support for the Constitution, Federalists frequently pointed to the inclusion of Article 5, which provides an orderly method of amending the Constitution. In contrast, the Articles of Confederation, which were universally recognized as seriously flawed, offered no means of amendment. For their part, Antifederalists argued that the amendment process was so “intricate” that one might as easily roll “sixes an hundred times in succession” as change the Constitution.

The system for amendment laid out in the Constitution requires that two-thirds of both houses of Congress agree to a proposed amendment, which must then be ratified by three-quarters of the legislatures of the states. Alternatively, an amendment may be proposed by a convention called by the legislatures of two-thirds of the states. Since 1789, members of Congress have proposed thousands of amendments. Besides the seventeen amendments added since 1789, only the six “unratified” ones included here were approved by two-thirds of both houses and sent to the states for ratification.

Among the many amendments that never made it out of Congress have been proposals to declare dueling, divorce, and interracial marriage unconstitutional as well as proposals to establish a national university, to acknowledge the sovereignty of Jesus Christ, and to prohibit any person from possessing wealth in excess of $10 million.*

Among the issues facing Americans today that might lead to constitutional amendment are efforts to balance the federal budget, to limit the number of terms elected officials may serve, to limit access to or prohibit abortion, to establish English as the official language of the United States, and to prohibit flag burning. None of these proposed amendments has yet garnered enough support in Congress to be sent to the states for ratification.

Although the first ten amendments to the Constitution are commonly known as the Bill of Rights, only Amendments 1–8 actually provide guarantees of individual rights. Amendments 9 and 10 deal with the structure of power within the constitutional system. The Bill of Rights was promised to appease Antifederalists who refused to ratify the Constitution without guarantees of individual liberties and limitations to federal power. After studying more than two hundred amendments recommended by the ratifying conventions of the states, Federalist James Madison presented a list of seventeen to Congress, which used Madison’s list as the foundation for the twelve amendments that were sent to the states for ratification. Ten of the twelve were adopted in 1791. The first on the list of twelve, known as the Reapportionment Amendment, was never adopted (see page A-12). The second proposed amendment was adopted in 1992 as Amendment 27 (see page A-22).

Amendment I

A-10

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

♦ ♦ ♦

▸ The First Amendment is a potent symbol for many Americans. Most are well aware of their rights to free speech, freedom of the press, and freedom of religion and their rights to assemble and to petition, even if they cannot cite the exact words of this amendment.

The First Amendment guarantee of freedom of religion has two clauses: the “free exercise clause,” which allows individuals to practice or not practice any religion, and the “establishment clause,” which prevents the federal government from discriminating against or favoring any particular religion. This clause was designed to create what Thomas Jefferson referred to as “a wall of separation between church and state.” In the 1960s, the Supreme Court ruled that the First Amendment prohibits prayer (see Engel v. Vitale, online) and Bible reading in public schools.

Although the rights to free speech and freedom of the press are established in the First Amendment, it was not until the twentieth century that the Supreme Court began to explore the full meaning of these guarantees. In 1919, the Court ruled in Schenck v. United States (online) that the government could suppress free expression only where it could cite a “clear and present danger.” In a decision that continues to raise controversies, the Court ruled in 1990, in Texas v. Johnson, that flag burning is a form of symbolic speech protected by the First Amendment.

Amendment II

A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.

♦ ♦ ♦

▸ Fear of a standing army under the control of a hostile government made the Second Amendment an important part of the Bill of Rights. Advocates of gun ownership claim that the amendment prevents the government from regulating firearms. Proponents of gun control argue that the amendment is designed only to protect the right of the states to maintain militia units.

In 1939, the Supreme Court ruled in United States v. Miller that the Second Amendment did not protect the right of an individual to own a sawed-off shotgun, which it argued was not ordinary militia equipment. Since then, the Supreme Court has refused to hear Second Amendment cases, while lower courts have upheld firearms regulations. Several justices currently on the bench seem to favor a narrow interpretation of the Second Amendment, which would allow gun control legislation. The controversy over the impact of the Second Amendment on gun owners and gun control legislation will certainly continue.

Amendment III

No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

♦ ♦ ♦

▸ The Third Amendment was extremely important to the framers of the Constitution, but today it is nearly forgotten. American colonists were especially outraged that they were forced to quarter British troops in the years before and during the American Revolution. The philosophy of the Third Amendment has been viewed by some justices and scholars as the foundation of the modern constitutional right to privacy. One example of this can be found in Justice William O. Douglas’s opinion in Griswold v. Connecticut (online).

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

♦ ♦ ♦

▸ In the years before the Revolution, the houses, barns, stores, and warehouses of American colonists were ransacked by British authorities under “writs of assistance,” or general warrants. The British, thus empowered, searched for seditious material or smuggled goods that could then be used as evidence against colonists who were charged with a crime only after the items were found. The first part of the Fourth Amendment protects citizens from “unreasonable” searches and seizures.

The Supreme Court has interpreted this protection as well as the words search and seizure in different ways at different times. At one time, the Court did not recognize electronic eavesdropping as a form of search and seizure, though it does today. At times, an “unreasonable” search has been almost any search carried out without a warrant, but in the two decades before 1969, the Court sometimes sanctioned warrantless searches that it considered reasonable based on “the total atmosphere of the case.”

A-11

The second part of the Fourth Amendment defines the procedure for issuing a search warrant and states the requirement of “probable cause,” which is generally viewed as evidence indicating that a suspect has committed an offense.

The Fourth Amendment has been controversial because the Court has sometimes excluded evidence that has been seized in violation of constitutional standards. The justification is that excluding such evidence deters violations of the amendment, but doing so may allow a guilty person to escape punishment.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

♦ ♦ ♦

▸ The Fifth Amendment protects people against government authority in the prosecution of criminal offenses. It prohibits the state, first, from charging a person with a serious crime without a grand jury hearing to decide whether there is sufficient evidence to support the charge and, second, from charging a person with the same crime twice. The best-known aspect of the Fifth Amendment is that it prevents a person from being “compelled . . . to be a witness against himself.” The last clause, the “takings clause,” limits the power of the government to seize property.

Although invoking the Fifth Amendment is popularly viewed as a confession of guilt, a person may be innocent yet still fear prosecution. For example, during the Red-baiting era of the late 1940s and 1950s, many people who had participated in legal activities that were associated with the Communist Party claimed the Fifth Amendment privilege rather than testify before the House Un-American Activities Committee because the mood of the times cast those activities in a negative light. Since “taking the Fifth” was viewed as an admission of guilt, those people often lost their jobs or became unemployable. (See chapter 26.) Nonetheless, the right to protect oneself against self-incrimination plays an important role in guarding against the collective power of the state.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.

♦ ♦ ♦

▸ The original Constitution put few limits on the government’s power to investigate, prosecute, and punish crime. This process was of great concern to the early Americans, however, and of the twenty-eight rights specified in the first eight amendments, fifteen have to do with it. Seven rights are specified in the Sixth Amendment. These include the right to a speedy trial, a public trial, a jury trial, a notice of accusation, confrontation by opposing witnesses, testimony by favorable witnesses, and the assistance of counsel.

Although this amendment originally guaranteed these rights only in cases involving the federal government, the adoption of the Fourteenth Amendment began a process of applying the protections of the Bill of Rights to the states through court cases such as Gideon v. Wainwright (online).

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

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▸ This amendment guarantees people the same right to a trial by jury as was guaranteed by English common law in 1791. Under common law, in civil trials (those involving money damages) the role of the judge was to settle questions of law and that of the jury was to settle questions of fact. The amendment does not specify the size of the jury or its role in a trial, however. The Supreme Court has generally held that those issues be determined by English common law of 1791, which stated that a jury consists of twelve people, that a trial must be conducted before a judge who instructs the jury on the law and advises it on facts, and that a verdict must be unanimous.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

♦ ♦ ♦

A-12

▸ The language used to guarantee the three rights in this amendment was inspired by the English Bill of Rights of 1689. The Supreme Court has not had a lot to say about “excessive fines.” In recent years it has agreed that, despite the provision against “excessive bail,” persons who are believed to be dangerous to others can be held without bail even before they have been convicted.

Although opponents of the death penalty have not succeeded in using the Eighth Amendment to achieve the end of capital punishment, the clause regarding “cruel and unusual punishments” has been used to prohibit capital punishment in certain cases (see Furman v. Georgia, online) and to require improved conditions in prisons.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

♦ ♦ ♦

▸ Some Federalists feared that inclusion of the Bill of Rights in the Constitution would allow later generations of interpreters to claim that the people had surrendered any rights not specifically enumerated there. To guard against this, Madison added language that became the Ninth Amendment. Interest in this heretofore largely ignored amendment revived in 1965 when it was used in a concurring opinion in Griswold v. Connecticut (online). While Justice William O. Douglas called on the Third Amendment to support the right to privacy in deciding that case, Justice Arthur Goldberg, in the concurring opinion, argued that the right to privacy regarding contraception was an unenumerated right that was protected by the Ninth Amendment.

In 1980, the Court ruled that the right of the press to attend a public trial was protected by the Ninth Amendment. While some scholars argue that modern judges cannot identify the unenumerated rights that the framers were trying to protect, others argue that the Ninth Amendment should be read as providing a constitutional “presumption of liberty” that allows people to act in any way that does not violate the rights of others.

Amendment X

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 Antifederalists were especially eager to see a “reserved powers clause” explicitly guaranteeing the states control over their internal affairs. Not surprisingly, the Tenth Amendment has been a frequent battleground in the struggle over states’ rights and federal supremacy. Prior to the Civil War, the Democratic Republican Party and Jacksonian Democrats invoked the Tenth Amendment to prohibit the federal government from making decisions about whether people in individual states could own slaves. The Tenth Amendment was virtually suspended during Reconstruction following the Civil War. In 1883, however, the Supreme Court declared the Civil Rights Act of 1875 unconstitutional on the grounds that it violated the Tenth Amendment. Business interests also called on the amendment to block efforts at federal regulation.

The Court was inconsistent over the next several decades as it attempted to resolve the tension between the restrictions of the Tenth Amendment and the powers the Constitution granted to Congress to regulate interstate commerce and levy taxes. The Court upheld the Pure Food and Drug Act (1906), the Meat Inspection Acts (1906 and 1907), and the White Slave Traffic Act (1910), all of which affected the states, but struck down an act prohibiting interstate shipment of goods produced through child labor. Between 1934 and 1935, a number of New Deal programs created by Franklin D. Roosevelt were declared unconstitutional on the grounds that they violated the Tenth Amendment. (See chapter 24.) As Roosevelt appointees changed the composition of the Court, the Tenth Amendment was declared to have no substantive meaning. Generally, the amendment is held to protect the rights of states to regulate internal matters such as local government, education, commerce, labor, and business, as well as matters involving families such as marriage, divorce, and inheritance within the state.

Unratified Amendment

Reapportionment Amendment (proposed by Congress September 25, 1789, along with the Bill of Rights)

After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

♦ ♦ ♦

▸ If the Reapportionment Amendment had passed and remained in effect, the House of Representatives today would have more than 5,000 members rather than 435.

Amendment XI

[Adopted 1798]

A-13

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 ruled in favor of Alexander Chisholm, executor of the estate of a deceased South Carolina merchant. Chisholm was suing the state of Georgia because the merchant had never been paid for provisions he had supplied during the Revolution. Many regarded this Court decision as an error that violated the intent of the Constitution.

Antifederalists had long feared a federal court system with the power to overrule a state court.

When the Constitution was being drafted, Federalists had assured worried Antifederalists that section 2 of Article 3, which allows federal courts to hear cases “between a State and citizens of another State,” did not mean that the federal courts were authorized to hear suits against a state by citizens of another state or a foreign country. Antifederalists and many other Americans feared a powerful federal court system because they worried that it would become like the British courts of this period, which were accountable only to the monarch. Furthermore, Chisholm v. Georgia prompted a series of suits against state governments by creditors and suppliers who had made loans during the war.

In addition, state legislators and Congress feared that the shaky economies of the new states, as well as the country as a whole, would be destroyed, especially if loyalists who had fled to other countries sought reimbursement for land and property that had been seized. The day after the Supreme Court announced its decision, a resolution proposing the Eleventh Amendment, which overturned the decision in Chisholm v. Georgia, was introduced in the U.S. Senate.

Amendment XII

[Adopted 1804]

The electors shall meet in their respective States, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of 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.

♦ ♦ ♦

▸ The framers of the Constitution disliked political parties and assumed that none would ever form. Under the original system, electors chosen by the states would each vote for two candidates. The candidate who won the most votes would become president, while the person who won the second-highest number of votes would become vice president. Rivalries between Federalists and Antifederalists led to the formation of political parties, however, even before George Washington had left office. Though Washington was elected unanimously in 1789 and 1792, the elections of 1796 and 1800 were procedural disasters because of party maneuvering (see chapters 9 and 10). In 1796, Federalist John Adams was chosen as president, and his great rival, the Antifederalist Thomas Jefferson (whose party was called the Republican Party), became his vice president. In 1800, all the electors cast their two votes as one of two party blocs. Jefferson and his fellow Republican nominee, Aaron Burr, were tied with 73 votes each. The contest went to the House of Representatives, which finally elected Jefferson after 36 ballots. The Twelfth Amendment prevents these problems by requiring electors to vote separately for the president and vice president.

Unratified Amendment

Titles of Nobility Amendment (proposed by Congress May 1, 1810)

A-14

If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honor or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them or either of them.

♦ ♦ ♦

▸ This amendment would have extended Article 1, section 9, clause 8 of the Constitution, which prevents the awarding of titles by the United States and the acceptance of such awards from foreign powers without congressional consent. Historians speculate that general nervousness about the power of the emperor Napoleon, who was at that time extending France’s empire throughout Europe, may have prompted the proposal. Though it fell one vote short of ratification, Congress and the American people thought the proposal had been ratified, and it was included in many nineteenth-century editions of the Constitution.

The Civil War and Reconstruction Amendments (Thirteenth, Fourteenth, and Fifteenth Amendments)

▸ In the four months between the election of Abraham Lincoln and his inauguration, more than 200 proposed constitutional amendments were presented to Congress as part of a desperate attempt to hold the rapidly dissolving Union together. Most of these were efforts to appease the southern states by protecting the right to own slaves or by disfranchising African Americans through constitutional amendment. None were able to win the votes required from Congress to send them to the states. The relatively innocuous Corwin Amendment seemed to be the only hope for preserving the Union by amending the Constitution.

The northern victors in the Civil War tried to restructure the Constitution just as the war had restructured the nation. Yet they were often divided in their goals. Some wanted to end slavery; others hoped for social and economic equality regardless of race; others hoped that extending the power of the ballot box to former slaves would help create a new political order. The debates over the Thirteenth, Fourteenth, and Fifteenth Amendments were bitter. Few of those who fought for these changes were satisfied with the amendments themselves; fewer still were satisfied with their interpretation. Although the amendments put an end to the legal status of slavery, it took nearly a hundred years after the amendments’ passage before most of the descendants of former slaves could begin to experience the economic, social, and political equality the amendments had been intended to provide.

Unratified Amendment

Corwin Amendment (proposed by Congress March 2, 1861)

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

♦ ♦ ♦

▸ Following the election of Abraham Lincoln, Congress scrambled to try to prevent the secession of the slaveholding states. House member Thomas Corwin of Ohio proposed the “unamendable” amendment in the hope that by protecting slavery where it existed, Congress would keep the southern states in the Union. Lincoln indicated his support for the proposed amendment in his first inaugural address. Only Ohio and Maryland ratified the Corwin Amendment before it was forgotten.

Amendment XIII

[Adopted 1865]

Section 1 Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

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

♦ ♦ ♦

▸ Although President Lincoln had abolished slavery in the Confederacy with the Emancipation Proclamation of 1863, abolitionists wanted to rid the entire country of slavery. The Thirteenth Amendment did this in a clear and straightforward manner. In February 1865, when the proposal was approved by the House, the gallery of the House was newly opened to black Americans who had a chance at last to see their government at work. Passage of the proposal was greeted by wild cheers from the gallery as well as tears on the House floor, where congressional representatives openly embraced one another.

The problem of ratification remained, however. The Union position was that the Confederate states were part of the country of thirty-six states. Therefore, twenty-seven states were needed to ratify the amendment. When Kentucky and Delaware rejected it, backers realized that without approval from at least four former Confederate states, the amendment would fail. Lincoln’s successor, President Andrew Johnson, made ratification of the Thirteenth Amendment a condition for southern states to rejoin the Union. Under those terms, all the former Confederate states except Mississippi accepted the Thirteenth Amendment, and by the end of 1865 the amendment had become part of the Constitution and slavery had been prohibited in the United States.

Amendment XIV

A-15

[Adopted 1868]

Section 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2 Representatives shall be appointed 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. 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.

♦ ♦ ♦

▸ Without Lincoln’s leadership in the reconstruction of the nation following the Civil War, it soon became clear that the Thirteenth Amendment needed additional constitutional support. Less than a year after Lincoln’s assassination, Andrew Johnson was ready to bring the former Confederate states back into the Union with few changes in their governments or politics. Anxious Republicans drafted the Fourteenth Amendment to prevent that from happening. The most important provisions of this complex amendment made all native-born or naturalized persons American citizens and prohibited states from abridging the “privileges or immunities” of citizens; depriving them of “life, liberty, or property, without due process of law”; and denying them “equal protection of the laws.” In essence, it made all ex-slaves citizens and protected the rights of all citizens against violation by their own state governments.

As occurred in the case of the Thirteenth Amendment, former Confederate states were forced to ratify the amendment as a condition of representation in the House and the Senate. The intentions of the Fourteenth Amendment, and how those intentions should be enforced, have been the most debated point of constitutional history. The terms due process and equal protection have been especially troublesome. Was the amendment designed to outlaw racial segregation? Or was the goal simply to prevent the leaders of the rebellious South from gaining political power?

The framers of the Fourteenth Amendment hoped Article 2 would produce black voters who would increase the power of the Republican Party. The federal government, however, never used its power to punish states for denying blacks their right to vote. Although the Fourteenth Amendment had an immediate impact in giving black Americans citizenship, it did nothing to protect blacks from the vengeance of whites once Reconstruction ended. In the late nineteenth and early twentieth centuries, section 1 of the Fourteenth Amendment was often used to protect business interests and strike down laws protecting workers on the grounds that the rights of “persons,” that is, corporations, were protected by “due process.” More recently, the Fourteenth Amendment has been used to justify school desegregation and affirmative action programs, as well as to dismantle such programs.

Amendment XV

[Adopted 1870]

A-16

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.

♦ ♦ ♦

▸ The Fifteenth Amendment was the last major piece of Reconstruction legislation. While earlier Reconstruction acts had already required black suffrage in the South, the Fifteenth Amendment extended black voting rights to the entire nation. Some Republicans felt morally obligated to do away with the double standard between North and South since many northern states had stubbornly refused to enfranchise blacks. Others believed that the freedman’s ballot required the extra protection of a constitutional amendment to shield it from white counterattack. But partisan advantage also played an important role in the amendment’s passage, since Republicans hoped that by giving the ballot to northern blacks, they could lessen their political vulnerability.

Many women’s rights advocates had fought for the amendment. They had felt betrayed by the inclusion of the word “male” in section 2 of the Fourteenth Amendment and were further angered when the proposed Fifteenth Amendment failed to prohibit denial of the right to vote on the grounds of sex as well as “race, color, or previous condition of servitude.” In this amendment, for the first time, the federal government claimed the power to regulate the franchise, or vote. It was also the first time the Constitution placed limits on the power of the states to regulate access to the franchise. Although ratified in 1870, the amendment was not enforced until the twentieth century.

The Progressive Amendments (Sixteenth–Nineteenth Amendments)

▸ No amendments were added to the Constitution between the Civil War and the Progressive Era. America was changing, however, in fundamental ways. The rapid industrialization of the United States after the Civil War led to many social and economic problems. Hundreds of amendments were proposed, but none received enough support in Congress to be sent to the states. Some scholars believe that regional differences and rivalries were so strong during this period that it was almost impossible to gain a consensus on a constitutional amendment. During the Progressive Era, however, the Constitution was amended four times in seven years.

Amendment XVI

[Adopted 1913]

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

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▸ Until passage of the Sixteenth Amendment, most of the money used to run the federal government came from customs duties and taxes on specific items, such as liquor. During the Civil War, the federal government taxed incomes as an emergency measure. Pressure to enact an income tax came from those who were concerned about the growing gap between rich and poor in the United States. The Populist Party began campaigning for a graduated income tax in 1892, and support continued to grow. By 1909, thirty-three proposed income tax amendments had been presented in Congress, but lobbying by corporate and other special interests had defeated them all. In June 1909, the growing pressure for an income tax, which had been endorsed by Presidents Roosevelt and Taft, finally pushed an amendment through the Senate. The required thirty-six states had ratified the amendment by February 1913.

Amendment XVII

[Adopted 1913]

Section 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 [voters for] the most numerous branch of the State legislatures.

Section 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.

Section 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 framers of the Constitution saw the members of the House as the representatives of the people and the members of the Senate as the representatives of the states. Originally senators were to be chosen by the state legislators. According to reform advocates, however, the growth of private industry and transportation conglomerates during the Gilded Age had created a network of corruption in which wealth and power were exchanged for influence and votes in the Senate. Senator Nelson Aldrich, who represented Rhode Island in the late nineteenth and early twentieth centuries, for example, was known as “the senator from Standard Oil” because of his open support of special business interests.

A-17

Efforts to amend the Constitution to allow direct election of senators had begun in 1826, but since any proposal had to be approved by the Senate, reform seemed impossible. Progressives tried to gain influence in the Senate by instituting party caucuses and primary elections, which gave citizens the chance to express their choice of a senator who could then be officially elected by the state legislature. By 1910, fourteen of the country’s thirty senators received popular votes through a state primary before the state legislature made its selection. Despairing of getting a proposal through the Senate, supporters of a direct election amendment had begun in 1893 to seek a convention of representatives from two-thirds of the states to propose an amendment that could then be ratified. By 1905, thirty-one of forty-five states had endorsed such an amendment. Finally, in 1911, despite extraordinary opposition, a proposed amendment passed the Senate; by 1913, it had been ratified.

Amendment XVIII

[Adopted 1919; repealed 1933 by Amendment XXI]

Section 1 After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof, for beverage purposes, is hereby prohibited.

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

Section 3 This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided by the Constitution, within seven years from the date of the submission thereof to the States by the Congress.

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▸ The Prohibition Party, formed in 1869, began calling for a constitutional amendment to outlaw alcoholic beverages in 1872. A prohibition amendment was first proposed in the Senate in 1876 and was revived eighteen times before 1913. Between 1913 and 1919, another thirty-nine attempts were made to prohibit liquor in the United States through a constitutional amendment. Prohibition became a key element of the progressive agenda as reformers linked alcohol and drunkenness to numerous social problems, including the corruption of immigrant voters. While opponents of such an amendment argued that it was undemocratic, supporters claimed that their efforts had widespread public support. The admission of twelve “dry” western states to the Union in the early twentieth century and the spirit of sacrifice during World War I laid the groundwork for passage and ratification of the Eighteenth Amendment in 1919. Opponents added a time limit to the amendment in the hope that they could thus block ratification, but this effort failed. (See also Amendment XXI.)

Amendment XIX

[Adopted 1920]

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 sex.

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

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▸ Advocates of women’s rights tried and failed to link woman suffrage to the Fourteenth and Fifteenth Amendments. Nonetheless, the effort for woman suffrage continued. Between 1878 and 1912, at least one and sometimes as many as four proposed amendments were introduced in Congress each year to grant women the right to vote. While over time women won very limited voting rights in some states, at both the state and federal levels opposition to an amendment for woman suffrage remained very strong. President Woodrow Wilson and other officials felt that the federal government should not interfere with the power of the states in this matter. Others worried that granting suffrage to women would encourage ethnic minorities to exercise their own right to vote. And many were concerned that giving women the vote would result in their abandoning traditional gender roles. In 1919, following a protracted and often bitter campaign of protest in which women went on hunger strikes and chained themselves to fences, an amendment was introduced with the backing of President Wilson. It narrowly passed the Senate (after efforts to limit the suffrage to white women failed) and was adopted in 1920 after Tennessee became the thirty-sixth state to ratify it.

Unratified Amendment

Child Labor Amendment (proposed by Congress June 2, 1924)

Section 1 The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.

Section 2 The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by Congress.

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▸ Throughout the late nineteenth and early twentieth centuries, alarm over the condition of child workers grew. Opponents of child labor argued that children worked in dangerous and unhealthy conditions, that they took jobs from adult workers, that they depressed wages in certain industries, and that states that allowed child labor had an economic advantage over those that did not. Defenders of child labor claimed that children provided needed income in many families, that working at a young age developed character, and that the effort to prohibit the practice constituted an invasion of family privacy.

In 1916, Congress passed a law that made it illegal to sell goods made by children through interstate commerce. The Supreme Court, however, ruled that the law violated the limits on the power of Congress to regulate interstate commerce. Congress then tried to penalize industries that used child labor by taxing such goods. This measure was also thrown out by the Court. In response, reformers set out to amend the Constitution. The proposed amendment was ratified by twenty-eight states, but by 1925, thirteen states had rejected it. Passage of the Fair Labor Standards Act in 1938, which was upheld by the Supreme Court in 1941, made the amendment irrelevant.

Amendment XX

[Adopted 1933]

Section 1 The terms of the President and Vice- President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd 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.

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▸ Until 1933, presidents took office on March 4. Since elections are held in early November and electoral votes are counted in mid-December, this meant that more than three months passed between the time a new president was elected and when he took office. Moving the inauguration to January shortened the transition period and allowed Congress to begin its term closer to the time of the president’s inauguration. Although this seems like a minor change, an amendment was required because the Constitution specifies terms of office. This amendment also deals with questions of succession in the event that a president- or vice president-elect dies before assuming office. Section 3 also clarifies a method for resolving a deadlock in the electoral college.

Amendment XXI

[Adopted 1933]

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

Section 2 The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3 This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission thereof to the States by the Congress.

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▸ Widespread violation of the Volstead Act, the law enacted to enforce prohibition, made the United States a nation of lawbreakers. Prohibition caused more problems than it solved by encouraging crime, bribery, and corruption. Further, a coalition of liquor and beer manufacturers, personal liberty advocates, and constitutional scholars joined forces to challenge the amendment. By 1929, thirty proposed repeal amendments had been introduced in Congress, and the Democratic Party made repeal part of its platform in the 1932 presidential campaign. The Twenty-first Amendment was proposed in February 1933 and ratified less than a year later. The failure of the effort to enforce prohibition through a constitutional amendment has often been cited by opponents to subsequent efforts to shape public virtue and private morality.

Amendment XXII

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[Adopted 1951]

Section 1 No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of 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.

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▸ George Washington’s refusal to seek a third term of office set a precedent that stood until 1912, when former president Theodore Roosevelt sought, without success, another term as an independent candidate. Democrat Franklin Roosevelt was the only president to seek and win a fourth term, though he did so amid great controversy. Roosevelt died in April 1945, a few months after the beginning of his fourth term. In 1946, Republicans won control of the House and the Senate, and early in 1947 a proposal for an amendment to limit future presidents to two four-year terms was offered to the states for ratification. Democratic critics of the Twenty-second Amendment charged that it was a partisan posthumous jab at Roosevelt.

Since the Twenty-second Amendment was adopted, however, the only presidents who might have been able to seek a third term, had it not existed, were Republicans Dwight Eisenhower, Ronald Reagan, and George W. Bush, and Democrat Bill Clinton. Since 1826, Congress has entertained 160 proposed amendments to limit the president to one six-year term. Such amendments have been backed by fifteen presidents, including Gerald Ford and Jimmy Carter.

Amendment XXIII

[Adopted 1961]

Section 1 The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct: A number of electors of President and Vice-President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered for the purposes of the election of President and Vice-President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

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

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▸ When Washington, D.C., was established as a federal district, no one expected that a significant number of people would make it their permanent and primary residence. A proposal to allow citizens of the district to vote in presidential elections was approved by Congress in June 1960 and was ratified on March 29, 1961.

Amendment XXIV

[Adopted 1964]

Section 1 The right of citizens of the United States to vote in any primary or other election for President or Vice-President, for electors for President or Vice-President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

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

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▸ In the colonial and Revolutionary eras, financial independence was seen as necessary to political independence, and the poll tax was used as a requirement for voting. By the twentieth century, however, the poll tax was used mostly to bar poor people, especially southern blacks, from voting. While conservatives complained that the amendment interfered with states’ rights, liberals thought that the amendment did not go far enough because it barred the poll tax only in national elections and not in state or local elections. The amendment was ratified in 1964, however, and two years later, the Supreme Court ruled that poll taxes in state and local elections also violated the equal protection clause of the Fourteenth Amendment.

Amendment XXV

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[Adopted 1967]

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

Section 2 Whenever there is a vacancy in the office of the Vice-President, the President shall nominate a Vice-President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3 Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President.

Section 4 Whenever the Vice-President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice-President and a majority of either the principal officers of the executive department[s] 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.

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▸ The framers of the Constitution established the office of vice president because someone was needed to preside over the Senate. The first president to die in office was William Henry Harrison, in 1841. Vice President John Tyler had himself sworn in as president, setting a precedent that was followed when seven later presidents died in office. The assassination of President James A. Garfield in 1881 posed a new problem, however. After he was shot, the president was incapacitated for two months before he died; he was unable to lead the country, while his vice president, Chester A. Arthur, was unable to assume leadership. Efforts to resolve questions of succession in the event of a presidential disability thus began with the death of Garfield.

In 1963, the assassination of President John F. Kennedy galvanized Congress to action. Vice President Lyndon Johnson was a chain-smoker with a history of heart trouble. According to the 1947 Presidential Succession Act, the two men who stood in line to succeed him were the seventy-two-year-old Speaker of the House and the eighty-six-year-old president of the Senate. There were serious concerns that any of these men might become incapacitated while serving as chief executive. The first time the Twenty-fifth Amendment was used, however, was not in the case of presidential death or illness, but during the Watergate crisis. When Vice President Spiro T. Agnew was forced to resign following allegations of bribery and tax violations, President Richard M. Nixon appointed House Minority Leader Gerald R. Ford vice president. Ford became president following Nixon’s resignation eight months later and named Nelson A. Rockefeller as his vice president. Thus, for more than two years, the two highest offices in the country were held by people who had not been elected to them.

Amendment XXVI

[Adopted 1971]

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

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

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▸ Efforts to lower the voting age from twenty-one to eighteen began during World War II. Recognizing that those who were old enough to fight a war should have some say in the government policies that involved them in the war, Presidents Eisenhower, Johnson, and Nixon endorsed the idea. In 1970, the combined pressure of the antiwar movement and the demographic pressure of the baby boom generation led to a Voting Rights Act lowering the voting age in federal, state, and local elections.

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In Oregon v. Mitchell (1970), the state of Oregon challenged the right of Congress to determine the age at which people could vote in state or local elections. The Supreme Court agreed with Oregon. Since the Voting Rights Act was ruled unconstitutional, the Constitution had to be amended to allow passage of a law that would lower the voting age. The amendment was ratified in a little more than three months, making it the most rapidly ratified amendment in U.S. history.

Unratified Amendment

Equal Rights Amendment (proposed by Congress March 22, 1972; seven-year deadline for ratification extended to June 30, 1982)

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.

♦ ♦ ♦

▸ In 1923, soon after women had won the right to vote, Alice Paul, a leading activist in the woman suffrage movement, proposed an amendment requiring equal treatment of men and women. Opponents of the proposal argued that such an amendment would invalidate laws that protected women and would make women subject to the military draft. After the 1964 Civil Rights Act was adopted, protective workplace legislation was removed anyway.

The renewal of the women’s movement, as a byproduct of the civil rights and antiwar movements, led to a revival of the Equal Rights Amendment (ERA) in Congress. Disagreements over language held up congressional passage of the proposed amendment, but on March 22, 1972, the Senate approved the ERA by a vote of 84 to 8, and it was sent to the states. Six states ratified the amendment within two days, and by the middle of 1973 the amendment seemed well on its way to adoption, with thirty of the needed thirty-eight states having ratified it. In the mid-1970s, however, a powerful “Stop ERA” campaign developed. The campaign portrayed the ERA as a threat to “family values” and traditional relationships between men and women. Although thirty-five states ultimately ratified the ERA, five of those state legislatures voted to rescind ratification, and the amendment was never adopted.

Unratified Amendment

D.C. Statehood Amendment (proposed by Congress August 22, 1978)

Section 1 For purposes of representation in the Congress, election of the President and Vice-President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.

Section 2 The exercise of the rights and powers conferred under this article shall be by the people of the District constituting the seat of government, and as shall be provided by Congress.

Section 3 The twenty-third article of amendment to the Constitution of the United States is hereby repealed.

Section 4 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.

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▸ The 1961 ratification of the Twenty-third Amendment, giving residents of the District of Columbia the right to vote for a president and vice president, inspired an effort to give residents of the district full voting rights. In 1966, President Lyndon Johnson appointed a mayor and city council; in 1971, D.C. residents were allowed to name a nonvoting delegate to the House; and in 1981, residents were allowed to elect the mayor and city council. Congress retained the right to overrule laws that might affect commuters, the height of federal buildings, and selection of judges and prosecutors. The district’s nonvoting delegate to Congress, Walter Fauntroy, lobbied fiercely for a congressional amendment granting statehood to the district. In 1978, a proposed amendment was approved and sent to the states. A number of states quickly ratified the amendment, but, like the ERA, the D.C. Statehood Amendment ran into trouble.

Opponents argued that section 2 created a separate category of “nominal” statehood. They argued that the federal district should be eliminated and that the territory should be reabsorbed into the state of Maryland. Although these theoretical arguments were strong, some scholars believe that racist attitudes toward the predominantly black population of the city were also a factor leading to the defeat of the amendment.

Amendment XXVII

[Adopted 1992]

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

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▸ While the Twenty-sixth Amendment was the most rapidly ratified amendment in U.S. history, the Twenty-seventh Amendment had the longest journey to ratification. First proposed by James Madison in 1789 as part of the package that included the Bill of Rights, this amendment had been ratified by only six states by 1791. In 1873, however, it was ratified by Ohio to protest a massive retroactive salary increase by the federal government. Unlike later proposed amendments, this one came with no time limit on ratification.

In the early 1980s, Gregory D. Watson, a University of Texas economics major, discovered the “lost” amendment and began a single-handed campaign to get state legislators to introduce it for ratification. In 1983, it was accepted by Maine. In 1984, it passed the Colorado legislature. Ratifications trickled in slowly until May 1992, when Michigan and New Jersey became the thirty-eighth and thirty-ninth states, respectively, to ratify. This amendment prevents members of Congress from raising their own salaries without giving voters a chance to vote them out of office before they can benefit from the raises.