Coda: The Life and Times of the Second Republic
Welcome back to Constitutional Perspectives!
Today it is time for the final chapter of Level One. Over the last several installments, I covered the story of slavery and the Constitution. Slavery defined what I call the First Republic, from the adoption of the Constitution in 1789 through the Civil War in 1861. The War and its aftermath – as memorialized in the three Reconstruction Amendments – transformed the Constitution, creating what I call the Second Republic. Last time I covered the arduous struggle to make the Second Republic's founding promise of equal civil rights for all (and in particular for the freed slaves, and their descendants) a reality, rather than a cruel lie.
All that remains, then, is to talk about everything else that was going on in the last hundred and fifty years of American history.
The reason I can cover this in a single, short coda, having just spent five whole essays on slavery and civil rights, is that... there's not that much to talk about. For purposes of Level One, anyway. Of course there has been an enormous amount happening in the world of constitutional law, of jurisprudence. But the Constitution itself has changed very little. Of course whether we should view changing judicial doctrine as a kind of amendment is itself contested. And we saw in the last installment how the Court was able to effectively nullify the Fourteenth Amendment through its narrow construction.
There are those (notably Bruce Ackerman) who say that developments in either the 1930s or the 1960s should be understood as moments of transformation akin to that of the 1860s, even though they left no comparable trace in the text itself. I disagree, for reasons that are basically beyond the scope of Level One. (For those who are interested, I wrote up a short screed about Ackerman's theory of constitutional change here.) Suffice it to say that, for present purposes, I am only interested in the actual formal amendments adopted since 1870, and in the historical developments that generated them.
There is an interesting pattern to American constitution-making, which is that it seems to come in waves. After the Founding – the original Constitution, the Bill of Rights, the Eleventh (clarifying an arcane point about the scope of federal judicial power in Article III) and Twelfth (fixing the obvious problems with the original design of presidential elections) Amendments – no new text was added for just over sixty years. Similarly, after the end of Reconstruction, no new text was added for just over fifty years.
This was, of course, the period in which, as I described last time, Reconstruction was abandoned and the Reconstruction Amendments allowed to wither. Another name for this time is the Gilded Age. This was a period of economic dynamism, largely due to the domestic policies of the Republican Party during the Civil War itself. But the wealth of the new powerhouse economy was exceptionally concentrated. With concentrated wealth came political corruption. The general sense was that the government had been captured by the rich and powerful, and/or that those in control of government were using it to become personally wealthy.
Naturally, as this state of affairs continued, a pressure built up among the populace, a demand, that government be made to work for the People. This pressure found its first expression in the Populist movement of the 1890s, as embodied by William Jennings Bryan. But it was the next incarnation, the Progressive movement, that actually achieved power. The Progressive Age was typified by the likes of Theodore Roosevelt and especially Woodrow Wilson. They theorized that, to meet the challenges of concentrated wealth and big business, the government itself needed to grow, to assert its powers more forcefully, to take on a bigger role in the life of the nation. Skilled bureaucrats – who had been freed from the corrupting influence of politics by the Pendleton Act of 1883 – would use these powers to bring order to the chaos of the Gilded Age free-for-all.
Principally, this philosophy found its expression in legislation. The Interstate Commerce Act of 1887, which regulated the railroads. The Sherman Antitrust Act of 1890, which sought to attack monopolies. The Pure Food and Drugs Act of 1906, which, uhhhh, does what it says on the tin. A defining quality of the age was the creation of new government agencies tasked with enforcing these new regulatory schemes. The Interstate Commerce Act created an Interstate Commerce Commission. The Federal Trade Commission Act of 1914 created, well, the FTC, to enforce the antitrust laws. The Federal Reserve Act of 1913 created a whole new system of economic management. All of this gave birth, in time, to what we know today as administrative law. Which, again, is way beyond the scope of Level One. Hell, it's substantially a matter for Level Three.
But the spirit of the age also found expression in four new constitutional amendments. There isn't really much of a unifying theme to their substance. The reason why all four were passed in a span of eight years is more, I think, a reflection of the broader attitude of reform. Where problems were found, solutions were to be crafted.
The Sixteenth Amendment authorized Congress to "lay and collect taxes on incomes, from whatever source derived" without following the formula for apportionment of direct taxes. The new, bigger, stronger federal government had required more revenue than the nineteenth-century system (principally organized around tariffs) could provide. Additionally, the tariff system had been a driving force of the corruption of the Gilded Age; there's a reason why the collector of the Port of New York was such an important patronage position.
But in 1895, the Supreme Court had held in a case called Pollock v. Farmer's Loan & Trust Co. that taxes on income from land – but not on wages from labor – were direct taxes and had to be apportioned. Which, being impossible, effectively meant that they could not exist at all. And a tax on labor income, but not land income, was utterly infeasible politically. The Sixteenth Amendment, proposed in 1909 and ratified four years later, overruled Pollock; you can also see in this story the origin of the "from whatever source derived" language.
The Seventeenth Amendment, proposed in 1912 and ratified the following year, is probably the most significant change to the original design of the federal government itself. At the Founding, Senators represented the states not only in that every state had the same number but in that they were chosen by the state legislatures, not by popular election. Even before the Civil War, some states had started having "beauty pageant" elections that, while not formally binding, would in practice be followed by the legislature. This is what occasioned the Lincoln-Douglas debates, for instance. And given the change in national identity that the war wrought, it is hardly surprising that the old model would have quickly become totally obsolete. The Seventeenth Amendment made that official.
The Eighteenth and Nineteenth Amendments were each the crowning triumph of a late nineteenth century social movement – temperance and women's suffrage, respectively. Of course those two movements were highly related. But their respective amendments fared very differently. The Eighteenth, proposed in 1917 and ratified in 1919, forbade intoxicating spirits nationwide, and empowered Congress to enforce this ban. This... Prohibition, you might say. That became the name for the next decade or so of American history.
Because of course it was a disaster. The American people, it turns out, love their intoxicating spirits, and it's really really hard to take them away. The effort required by the federal government to enforce Prohibition was basically unprecedented. And it still wasn't enough, and it created space for organized crime to flourish along the way. Hence the Eighteenth Amendment being repealed by the Twenty-First just fourteen years later, the only time an amendment has ever been repealed. The Twenty-First made regulation of alcohol a state matter, and although a few "dry" states still tried to ban booze for another few decades, by the 1960s they had basically all acknowledged that it was a losing effort.
The Nineteenth Amendment, on the other hand, was just a victory. It gave women the vote, or rather, specified that the right to vote could not be denied on account of sex – just as the Fifteenth had done for race. I mentioned last time that the abolitionist and suffragist movements had split over the Fifteenth Amendment, with the women's movement feeling betrayed that they had not been included. Well, they spent the next sixty years organizing, lobbying, protesting, etc., and eventually they won. Women's suffrage amendments had been introduced periodically in Congress since 1878, but in 1919 one was finally passed, sent to the states, and promptly ratified. And, unlike the Fifteenth, it just worked. There is no significant history of women (as such) being denied the vote after 1920. There were a few (hilarious) challenges to the validity of the amendment; some disaffected men argued that women's suffrage was somehow beyond the scope of the constitutional amendment process. But the Court rightly laughed these arguments out of court in Leser v. Garnett (1922). And that was basically the end of the matter.
That brought the burst of Progressive constitution-making to a close. The next three amendments all had to do with four-term President Franklin Delano Roosevelt in one way or another. One of these was the Twenty-First: Roosevelt had campaigned on an end to prohibition, and he got it. The Twentieth Amendment moved the start of presidential and congressional terms forward from March 4th to January (the 3rd for Congress, the 20th for the President). Why? Well, because during the extremely long period between Roosevelt's election in November 1932 and his inauguration the following March, outgoing "lame duck" President Herbert Hoover continued his utterly inept management of the Great Depression. If Roosevelt had been able to take the reins sooner, some significant portion of the slide into depression could have been arrested.
The Twenty-Second, on the other hand, had less of a positive spin on FDR. Ever since George Washington declined to seek a second re-election in 1796, there had been an informal norm against presidents seeking third terms. That norm had been challenged a few times – Ulysses Grant in 1880 (as dramatized in the excellent Death by Lightning), Teddy Roosevelt in 1912 – but FDR was the first to seek and win a third term. And then a fourth. The Twenty-Second Amendment wrote the Washington precedent into law, ensuring that this would never happen again.
There's one more amendment that's sort of in the same spirit as the Twentieth and Twenty-Second, and that's the Twenty-Fifth. You might know it for its fourth and final section, which provides a mechanism for the Vice President and the Cabinet to declare the President incapable of carrying out the duties of office. But the animating portion of the amendment was probably the second section, which allows the president to nominate a new Vice President if the latter office becomes vacant. Previously, if the Vice President left office – including by succeeding to the presidency – the office would just stay vacant until the next election. President John F. Kennedy's assassination in November 1963 made this suddenly seem quite precarious: the new president, Lyndon Johnson, was fifty-five and not in the best of health (in fact he would die only ten years later), while both the Speaker of the House (John McCormack, 71) and the President Pro Tempore of the Senate (Carl Hayden, 86) were quite old themselves. Of course the first, and so far only, time the Twenty-Fifth Amendment provision for appointing a new Vice President was after Spiro Agnew resigned in disgrace in the waning days of the Nixon presidency. So it goes.
The remaining amendments all occurred in a short span of time, and they're all thematically linked. The Twenty-Third, -Fourth, and -Sixth Amendments were all adopted during the time of the Civil Rights Movement. And they all concern voting rights. The Twenty-Third let the people of Washington, D.C. (most of whom are African-American) vote in presidential elections (though they still lack representation in Congress). The Twenty-Fourth banned poll taxes. And the Twenty-Sixth set the national voting age to 18. I see this batch of amendments as reflecting the new ethos of universal suffrage. The political philosophy of the early Republic, which saw voting as a privilege reserved only for a certain class of citizens, had long since fallen out of favor. The Fifteenth and Nineteenth Amendments had forbidden the two most significant dimensions along which suffrage had been limited. But nothing about the constitutional design reflected the assumption that everyone should vote, that it was bad if some people were denied the right to vote. These three amendments made modest but real strides toward fixing that.
These were the last amendments to be proposed and ratified. I already mentioned the oddity that is the Twenty-Seventh Amendment, proposed in 1789 with the rest of the Bill of Rights, ratified in 1992. There have been a bunch of basically-unserious proposals for amendments since 1970, many of them stupid right-wing culture war stuff (flag burning, gay marriage bans, things of that nature). Two, though, deserve actual mention here:
Around the same time as it was drafting the Twenty-Sixth Amendment in 1970, Congress was seriously considering an amendment that would have abolished the Electoral College. My grandfather testified against it, and it was never proposed. So uhhh.... sorry about that?
More famously, in 1972 Congress proposed the Equal Rights Amendment, which would have expressly made sex discrimination unconstitutional. It had been proposed in essentially every Congress since women's suffrage way back in 1920, but it took until the '70s for the feminist movement to gain enough traction to see it passed through Congress. Thirty-five states ratified the thing in the years that followed, most of them in the first two years after proposal. Then the seven-year deadline for ratification ran out. Recently there's been some thought that this deadline might be invalid, that the ERA might still be pending before the states, that indeed enough states may have ratified it in the last few years for it to become law. I started writing a little about this, back before the election in November made the question seem kind of grotesque.
And... that's it! That's the end of our story, the story of the American Constitution, from 1776 through to the present day – or, if you prefer, to the eve of the Trump era. Thus we have reached the end of Level One of Constitutional Perspectives. I hope you've found it interesting and informative, and I'll be back in the new year for the start of Level Two. Thanks for reading!