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Loyola University of Chicago Law Journal
Summer, 1992, Page 631
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AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES: A COMMENTARY *
George Anastaplo **
Thus says the Lord of hosts, the God of Israel, "Amend your ways and your doings, and I will let you dwell in this place. Do not trust in these deceptive words: 'This is the temple of the Lord, the temple of the Lord, the temple of the Lord.' For if you truly amend your ways and your doings, if you truly execute justice one with another, if you do not oppress the alien, the fatherless or the widow, or shed innocent blood in this place, and if you do not go after other gods to your own hurt, then I will let you dwell in this place, in the land that I gave of old to your fathers for ever."
Jeremiah 7:3-7
TABLE OF CONTENTS - CONTINUED
. . . .
13. AMENDMENTS XVI, XVII, AND XIX . . . . . . . . . . . . . . . . . . . . . . . . . . . 805
14. AMENDMENTS XVIII AND XXI .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 813
15. AMENDMENTS XX, XXII, XXIII, AND XXV . . . . . . . . . . . . . . . . . . . . . 824
16. AMENDMENTS XXIII, XXIV, AND XXVI . . . . . . . . . . . . . . . . . . . . . . . 833
17. THE CONSTITUTION IN THE TWENTY-FIRST CENTURY . . . . . . . . . 840
APPENDIX A: LETTERS EXCHANGED BY THOMAS JEFFERSON AND
JOHN ADAMS (1814) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849APPENDIX B: THE CONFEDERATE CONSTITUTION (1861) . . . . . . . . . . 855
13. AMENDMENTS XVI, XVII, AND XIX
I.
The Sixteenth, Seventeenth, and Nineteenth Amendments, along with the Eighteenth Amendment (which we will consider in our next Lecture along with the Amendment that repealed it, the Twenty-first), all reflect populist developments in the United States during the first quarter of the Twentieth Century.
More than forty years passed between the Civil War Amendments (1865, 1868, and 1870) and these three Amendments of 1913 and 1920. Thus, it took more than half a century to spell out the populist implications grounded in the equality principle that began to be drawn upon in the 1860s with the radically democratic response to the oligarchic features of the attempt at Secession.
The three Civil War Amendments obscure a significant fact of American constitutional history: more than a century passed (that is, from 1804 to 1913) before any amendments were fashioned primarily for changing the way the National Government worked in this Country. The Civil War Amendments, as we have seen, were directed primarily to curbing the States, and powers were given to the General Government to serve that end.
I have attempted to develop, both in my Commentary on the [Page 806] Constitution of 1787 and in my Commentary on the first twelve Amendments, the order in which things are arranged, an order keyed to the matters dealt with both in the Constitution and in those Amendments. When one goes beyond the Twelfth Amendment, or for that matter when one goes beyond the Tenth Amendment, the order of the Amendments is determined by "history," which means that chance is likely to play a greater part, making the overall American constitutional movement more difficult to subject to rational analysis.[210]
II.
A change in the way the National Government worked may be seen in 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."
This change, unlike the changes regarding the States in the Civil War Amendments and elsewhere, was primarily to expand the power of the National Government. In fact, we have noticed, there has never been a constitutional amendment which has curbed any of the powers originally desired by the Framers of the Constitution for the Government of the United States.[211]
The Sixteenth Amendment might never have been needed if the Supreme Court had not cast doubt in 1895 upon the power of Congress to tax incomes,[212] something Congress had done during the Civil War. The difficulty perceived here had come from the provision in Section 9 of Article I of the Constitution: "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." It is difficult to see, however, that an income tax violated the obvious purposes of the limitation upon "Capitation, or other direct, Tax," a limitation that aimed at uniform treatment of taxpayers throughout the several States.
The Sixteenth Amendment is still another indication that citizens can be dealt with directly by the National Government, without any mediation by the States in any way. This has been seen [Page 807] recently in what can be done by the General Government with the National Guard of a State.
III.
The Seventeenth Amendment provides for the direct popular election of Senators, taking that power of election away from the State legislatures:
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 legislature.
This shift can be said to have been anticipated by, among other things, the highly-publicized contest between Abraham Lincoln and Stephen A. Douglas in Illinois in 1858. Although that election still depended on the State legislature, the famous debates between Lincoln and Douglas were intended to influence the choice by the people of the members of the State legislature that would in turn choose a Senator that year.
The national movement that led to direct election of Senators has been described in this fashion:
Selection of United States senators by state legislatures had been an object of criticism for many years. Direct election of senators was first proposed in 1826; and after 1893 a constitutional amendment to establish direct election was proposed in Congress every year. Even without a constitutional amendment, popular choice of senators was becoming the rule. By 1912, twenty-nine of the forty-eight states had provided either for nomination by party primaries, with the individual legislators bound to vote for their party's nominee, or for a statewide general election, the result of which was binding on the legislature.
The objectives of direct election included reducing corruption in selection of senators, elimination of national-party domination of state legislatures, and immediate representation of the people in the Senate. . . . [213]
The stipulation in the Seventeenth Amendment that "each Senator shall have one vote" simply repeats a provision in Section 3 of Article I of the Constitution: it had been prudent to make that point there, lest it be argued that the two Senators chosen by a State legislature should have no votes on their own but rather [Page 808] should act as their State legislature directed.[214]
The provision in the Seventeenth Amendment about the electors of Senators is taken from Section 2 of Article I where the qualifications of the electors of Representatives are described. We can see here, as elsewhere in the Amendments, signs of the steady democratization that may well have been implicit in the American constitutional system from its beginning. Perhaps this is evident as well in the second paragraph of the Seventeenth Amendment, where it is clear (even more than in the Constitution itself) that the temporary replacement of a Senator, pending an election, is ultimately under the control of the legislature, not of the governor.
Students of the Constitution have wondered whether the popular election of Senators has been a good thing for the Country. It is sometimes said that popular election of Senators has opened the way to more demagoguery in Senators, as well as much more costly elections, than we might otherwise have had. Or, as some have put it, all, or practically all, of the good Senators we have had in the Twentieth Century could have been chosen by their State Legislatures as well but most, if not all, of our bad Senators would not have been chosen by State legislatures.
This assessment presupposes, it seems, that the worst Senators we have had would not have been chosen by people who really knew them¾and State legislators are much more apt to know Senatorial candidates intimately than is the man in the street. Of course, it can be answered, the man in the street is more likely to be moral, if not moralistic, in his political judgment than the professional politician. And so the question is left whether it is better in such matters to lean more toward morality or more toward competence, as each of these is ordinarily understood.
The difficulty in any recourse to a completely popular election of the President may be seen in the problem any one of us has in trying to figure out what appeal this or that questionable Senator from another State could possibly have in the State from which he is elected. We can still rely somewhat upon party and State organizations to screen our Presidential candidates for us, a screening that direct popular election would tend to discourage, just as popular [Page 809] election of Senators and much more reliance on Presidential primaries have tended to do.
IV.
We can see in the Seventeenth Amendment, just as in the Sixteenth Amendment, that the role of the States is cut down in our constitutional system. As a result of the Sixteenth Amendment, we have seen, citizens can be dealt with directly by the United States as tax collector, without any reference at all to the States. As a result of the Seventeenth Amendment, we have also seen, citizens can directly choose their own Senators: the State legislatures are not to filter out and weigh popular opinions and desires in making the choice.
The qualifications of electors of Senators in a State are keyed in the Seventeenth Amendment to the broadest base possible among the various standards employed by the State in identifying electors for its legislature. Subsequent Amendments, beginning with the Nineteenth, whittle away at even this control of the electorate by State governments. This development may have been encouraged, if not to some degree required, by the Republican Form of Government Guarantee in the Constitution of 1787.
We can see that there may be something inevitable, or at least highly likely, about all this: once a massive change is begun, as the result of something as cataclysmic as the Civil War, it is hard to reverse the movement. In much of the Country States' Rights had come to mean Slavery and Rebellion¾and so the States have found their powers steadily curtailed, both by formal constitutional amendments and by everyday political rearrangements.
Still, it is instructive to notice that the changes made thus far by constitutional Amendments do not emphasize the duties that government might have. Except for the Preamble and the Republican Form of Government Guarantee, none of the provisions for the rights of individuals in the Constitution and its Amendments require the Government of the United States to do anything on behalf of citizens; rather, the Government is kept, by the declaration of these rights, from doing certain things. Economic and social rights, as in the United Nations Declaration of Human Rights, require the government to provide various things. But it is evident that the attempt to implement such rights can be frustrating. The American approach, on the other hand, still tends to proceed on the assumption that the Constitution of the United States should do no more than empower and restrain government, leaving it up [Page 810] to the people to decide both what to do with their resources and what they want their governments to do for them with the powers made available to government. I return to these matters in Lecture No. 17.
V.
The Nineteenth Amendment provides, "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." The "denied or abridged" form had been used before, as in the Fifteenth Amendment: this makes sure that neither a refusal nor a cutting down will be tolerated here.
The background to the emergence of the Nineteenth Amendment has been described in this fashion:
Political agitation for enfranchisement began in 1848, at the first women's rights convention in Seneca Falls, New York. In its Declaration of Sentiments, the convention included suffrage as one of the "inalienable rights" to which women were entitled. As the century progressed, the vote assumed increasing importance, both as a symbolic affirmation of women's equality and as a means to address a vast array of sex-based discrimination in employment, education, domestic law, and related areas. Once the Supreme Court ruled [in 1875] that suffrage was not one of the Privileges and Immunities guaranteed by the Fourteenth Amendment to women as citizens, the necessity for a state or federal constitutional amendment became apparent.
The struggle for women's rights was a response to various forces. Urbanization, industrialization, declining birth rates, and expanding educational and employment opportunities tended to diminish women's role in the private domestic sphere while encouraging their participation in the public sphere. So too, women's involvement, first with abolitionism and later with other progressive causes, generated political commitments and experiences that fueled demands for equal rights.[215]
Women's suffrage did not begin in the United States with the Nineteenth Amendment. Some jurisdictions had already begun to allow women to vote well before the Nineteenth Amendment. It should be noticed that the Constitution of 1787 never kept the States from allowing women to vote. We can see, as before, that the States are not left free to implement this Amendment as they [Page 811] wish: Congress is given power "to enforce this article by appropriate legislation."
The suffrage guarantee in the Nineteenth Amendment is, it seems to me, far more important than the Equal Rights Amendment proposed by Congress in 1972. The 1972 proposal, which barely failed of ratification by the States, provides, "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." Women, who need not be a "minority" in the United States, are equipped, by the use of the votes they do have, to get by means of legislation everything that they should want to get from an Equal Rights Amendment--and, in fact, Congressional and State legislation, backed up by judicial interpretations, have already accomplished much of what the Equal Rights Amendment would have, and perhaps in a "healthier" way (that is, without the kind of recrimination that has come from reliance upon judicial rather than political development of, say, abortion rights).[216]
VI.
Since the Civil War there have been three principal developments (the first two of which we have already had illustrations of): the equality principle is implemented further, the States are played down, and Presidential arrangements are "tinkered with." These three developments may be related to one another. Thus, the extension of suffrage by means of the Fifteenth and Nineteenth Amendments has meant that the States have lost some of the control of elections that they originally had. The States, however important they are bound to remain, have been decisively eclipsed in their institutionalized or collective capacity.
It is well to notice again that the constitutional Amendments we have had are, by and large, consistent with the original Constitution. Many of them can be said to have been called for, or at least encouraged, by the spirit of the Constitution of 1787. This may even be said of the Civil War Amendments. That is, an explanation was needed, from the beginning, to justify the accommodations to slavery in the Constitution of 1787; but no explanation was needed to justify the abolition of slavery in 1865, especially since [Page 812] this had already happened in most of the civilized world. In these matters, the United States often leads, but also sometimes follows, what is happening elsewhere.
VII.
I return to the significance of steadily playing down the States in our constitutional system. This can also mean playing down the Congress, with a related ascendancy of the Presidency. Consider, for example, how the Congressional prerogative with respect to the declaration of war was virtually foreclosed by the Presidential decision, announced on November 8, 1990, to transform the emergency-promoted American forces in Saudi Arabia from a "defensive" to an "offensive" capacity. Such unilateral action by the President, effectively limiting what Congress could do thereafter, would have once been generally recognized as perhaps unconstitutional in spirit.
The States and the Congress go together more than do the President and the States. However Senators are chosen, they are selected State by State; the same is true of members of the House of Representatives. But the tendency is more and more to turn the election of the President into a national event, even without going all the way to a direct popular election.
It has always been in Congress that the States have been most effective. For Congress does reflect, much more than any President can, the States as States. It is easy, sometimes perhaps even necessary, to identify the Nation with the Executive Officer, especially during a crisis. This is probably reinforced by technological developments that make it easy, as well as more interesting, to play up the drama of individual leaders acting. Our Presidents, however, are by and large much more like chief executives in countries around the world than our Congress is like most "parliaments" around the world. Deliberative bodies are far less exciting than chief executives, most of the time¾but is it not in Congress that We the People do our most distinctive as well as our most effective "peopling" most of the time?
14. AMENDMENTS XVIII AND XXI
I.
The Eighteenth Amendment, ratified just after the First World War, provided in its first section: "After one year from the ratification of this article the manufacture, sale, or transportation of intox-[Page 813]icating 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." As one author has observed of the post-First World War era:
That was a time of great hopes and high endeavors, with the Progressive movement making successful efforts to revive income taxation, to provide for the popular election of Senators and for women's suffrage, to institute the direct primary, initiative and referendum, and ballot reform, to regulate business, and to improve the lot of the underprivileged.[217]
The United States had just fought a war that was defined, in this Country at least, as aiming to make the world safe for democracy. Now, it was widely believed in the United States, a general abstention from intoxicating liquors would help make democracy safe for the world by moderating the passions and strengthening the moral fibre of the American people. The Eighteenth Amendment, combining as it did high-minded aspirations and dismal consequences, became the "Vietnam War" of our constitutional Amendments.
One of the concerns that prohibitionists had as they agitated against alcohol in this Country was that prohibition not be identified with the sumptuary laws familiar to the Eighteenth Century. Those laws, directed at consumption and display, were often condemned by Americans as infringements of liberty. The desire of prohibitionists not to have their efforts resisted as sumptuary laws helps account for the exclusion from the Eighteenth Amendment of any restriction upon the consumption of intoxicating beverages. Rather, it was argued, prohibition addressed the misconduct of the merchants of alcohol, not the morals or the personal liberty of the American people.[218]
II.
The Eighteenth Amendment was an unnecessary amendment in that it followed upon misreadings of parts of the Constitution: much if not all that the Amendment was intended to accomplish could have been done by the use of Congressional powers. This [Page 814] would have been, in the first decades of this century, more obvious than it was if the Commerce Clause had always been recognized in its amplitude by the United States Supreme Court.
Alcohol could be regulated, even to the extent of prohibition, by Congressional statute, without the need of any constitutional amendment, just as many narcotics, various weapons, cigarette sales, and child labor are dealt with today.[219] The suppression of child labor is particularly instructive in that it was first attempted by Congressional statute, then by constitutional amendment when the statute was said by the Supreme Court to be unconstitutional, and then again by statute when the Supreme Court reversed itself with respect to the constitutionality of child labor regulations, making it unnecessary to press further for the ratification of the proposed amendment. Since the physical and social effects of alcohol in this Country have always been far worse than those of narcotics, it would seem that if the sale of narcotics can be banned as they are by Congressional statute, so can the sale of alcohol.
It is not only the Commerce Clause that can be said to provide Congress the basis for the regulation of the manufacture and sale of alcohol. The revenue powers of Congress were looked to in the first session of the First Congress for this purpose: a tariff on the importation of molasses was justified, in part, for what it would do to help curb the manufacture and consumption of rum in this Country.[220]
Prohibition did not begin in this Country with the Eighteenth Amendment. It had been anticipated in more than half of the States by State-wide measures and in the Country at large, during the First World War, by the Wartime Prohibition Act. The States were understood to be exercising their traditional powers to safeguard the health and morals of their people; Congress was understood to be exercising its defense powers in curtailing the production of alcohol which used grains needed for the war effort and which undermined the efficiency of the work force. Thus, the Country was largely dry, by acts of Congress and of the States, before the Eighteenth Amendment took effect.[221]
If the prohibitionists (who were evidently strengthened significantly by the newly-established women's suffrage) had restricted [Page 815] themselves to State efforts and to Congressional statutes, they might have been more successful in the long run than they were, in that they could have been more discriminating in the measures they relied upon. Did recourse to a constitutional amendment make it much more likely that there would be an all-or-nothing approach, with the dire consequences for the cause of prohibition that we have seen? Care must be taken lest the Constitution and constitutional interpretations be used as repositories for a variety of social and economic reforms which are better left to statutes that can be much more easily adjusted as circumstances change.
III.
I have suggested that a constitutional amendment in this Country usually is seen following upon, rather than leading to, a general development. For example, the reliance upon preferential primaries for the popular choice of Senators preceded the Seventeenth Amendment.[222] We have seen that the much-publicized Lincoln-Douglas Debates contributed to developments here. We have also seen that the 1913 Women's Suffrage Amendment, too, was anticipated by innovations in the States, going back to what Wyoming had done in 1889 in permitting women to vote.[223]
We have noticed as well that legal prohibition of alcohol was widely practiced before the Eighteenth Amendment was ratified. Much of the impetus for prohibition at the turn of this century came from the campaign against the evils of saloons. This helped put the emphasis, as did the Eighteenth Amendment later on, not upon the morality of the drinkers but rather upon the greed and misconduct of the producers and suppliers.[224]
It can seem most implausible to us today that two-thirds of the Congress and three-fourths of the States could agree, with considerable enthusiasm, that the manufacture and sale of intoxicating beverages should be generally suppressed in this Country. This was in large part due, it seems, to a widespread and perhaps justified opinion about the devastating effects of alcohol consumption in the Nineteenth Century. We get some notion of what that devastation must have looked like by noticing today the problems that the Russians have with alcohol and that we have with drugs. [Page 816]
We will see, further on, how shifts in public opinion contributed to the repeal of the Eighteenth Amendment.
IV.
The terms of the Eighteenth Amendment do not pose much of a problem in figuring out what was intended. It was recognized, however, that Congress would have to be relied upon to determine what should be considered "intoxicating liquors." This Congress did in the Volstead Act of 1919,[225] which also provided means for enforcing the prohibitions of the Eighteenth Amendment.
Some have argued that the Amendment, instead of using the term intoxicating liquors, should have referred to and thus forbidden various forms of alcohol, such as beer, rum, whiskey, and wine. One may wonder, as well, whether intoxicating pills and powders should have been considered within the scope of the term, for beverage purposes.[226] But these do not seem to have been difficult problems in enforcing this Amendment.
In critical respects, moreover, the Eighteenth Amendment was self-executing, once its year of grace had run.[227] The restriction in the Amendment upon exportation seems to have served at least two purposes: It would be easier to control the domestic sales of alcohol if none could be made for export either, since the potential diversion to the domestic market of alcohol said to be manufactured for export would always have been a problem. Also, some of the prohibitionists saw the American development as the forerunner of a salutary worldwide movement. They did not want to permit the foisting upon the rest of the world of what was now recognized to be harmful in the United States.
Questions were raised, as the Volstead Act was prepared and enforced, whether the absolutist character of the Eighteenth Amendment overrode various other constitutional provisions, including those which recognized the effects of treaties and which enshrined (as in the Bill of Rights) traditional guarantees. Certainly, constitutional interpretations and relations, as well as the [Page 817] general political system in this Country, were substantially shaken up by attempted implementations of the Eighteenth Amendment.
Symbolic perhaps of the distortions following upon this Amendment are the directions laid down in the third section of the Eighteenth Amendment:
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.
This kind of provision also came to be used in Amendments XX, XXI, and XXII. There was thereby some thirty years of burdening the Constitution with decidedly unconstitutional language, language that could be adequately provided for (as it is now) in the Congressional resolution submitting a proposed amendment to the States for their ratification.
Thus, it can be said, the purpose of Section 3 of the Eighteenth Amendment could have been accomplished without adding that section to the Amendment just as the principal purpose of the Eighteenth Amendment itself could have been accomplished (and, indeed, perhaps better accomplished) without adding that Amendment to the Constitution.
V.
This, then, was what came to be known as The Noble Experiment¾first, sincerely, by its proponents; later, sardonically, by its critics. This became, in some ways, the American Issue. The alcohol prohibition movement was largely rooted in the Protestant churches in this Country. [228] Some may be tempted, therefore, to regard it to have been in spirit, even if not in terms, a partial modification of the Religion Clauses of the First Amendment.
Certainly, religious enthusiasm stimulated and sustained the prohibition movement, just as it had done a half-century before with the slavery-abolition movement. Prohibitionists, in their determination to stamp out the evils of the intoxicating-liquors industry, were themselves intoxicated by what they believed that Law could accomplish.
They did try to eliminate the slavery of addiction to alcohol by the Eighteenth Amendment, just as had been done for the slavery of the African race by the Thirteenth Amendment. In both cases, [Page 818] the War Powers of the Government of the United States were used to anticipate what constitutional amendments later aimed at. One would not be allowed to become a slave voluntarily, it seems to have been argued, so why should one be allowed to become enslaved by alcohol, even if voluntarily? And, it could also have been argued, it is the blessings, not the curses, of liberty that the Constitution is designed to serve.
Opponents to national prohibition questioned it on several accounts:
As in the debates over state prohibition, the opponents of the amendment argued that drinking was a deeply rooted custom and that many people, especially wage earners and persons of foreign stock, would regard prohibition as a violation of their personal liberty and refuse to obey it. The result, they warned, would be to discredit the law.[229]
Senator Henry Cabot Lodge, of Massachusetts (one of the States that refused to ratify the Eighteenth Amendment), predicted:
As a measure of prohibition the practical difficulties . . . will cause it to fail, and my own belief is that in a very short time we shall settle down to a condition like that presented by the Amendments which attempted to confer full political rights upon the negroes of the United States, where the constitutional provision is entirely disregarded.[230]
Consider, also, Lincoln's position with respect to both alcohol and slavery: he (as both a non-drinker and an anti-slavery man) had reservations about the imprudent, and hence unpolitical, measures advocated by both the prohibitions and the abolitionists of his day.[231]
Others even argued that since the proposed amendment would control private and personal conduct and destroy a species of property, it was somehow inappropriate for the Constitution. This led in turn to questions about how the Amendment should be ratified, with some insisting that only the people themselves could approve such an innovation. [232] All this reminds us of an old question: Are there any amendments that would be improper, if not impossible, to add to the Constitution? We shall return to this question in my last Lecture. [Page 819]
The United States can be said to have "turned eighteen" in more ways than one with this Amendment. It did "grow up" somewhat with this experiment, for it led to a traumatic loss of innocence. The perhaps quixotic effort made here, with the nobility that it represented, may have been unprecedented in the Western world, at least in modern times.
VI.
Loss of innocence may be seen in the social and political turmoil that contributed to the prompt repudiation of the Eighteenth Amendment. Repeal became as generally known a term as Prohibition had been, enlisting enthusiasms of its own.
The movement for repeal probably had at its roots the appetite that many have always had for alcohol, an appetite that is considered so natural by some people that the United States could look ridiculous abroad for what it was trying to do. It may well be, however, that national prohibition worked much better in the 1920s than it is now recognized to have done, reducing significantly the waste and damage associated with alcohol consumption, waste and damage that we can still see among us in large measure. We also have considerable experience with and testimony of people who have benefited immeasurably by personally turning away from alcohol. Such people do not consider their liberty infringed, but rather enhanced, by having given up alcohol.
Even so, a critical perceived consequence of Prohibition was the breakdown of law and order in this Country, including the corruption of public officials connected with crime, something we are quite familiar with because of what has been happening with respect to drugs in recent decades.[233] The morale, tastes, and dedication to law-abidingness of citizens were undermined by the struggle over compliance. And, it is said, the Mob was permanently established in American life.
Thus, several serious consequences of the Eighteenth Amendment outlasted the Amendment itself.
VII.
A shift in American sentiment doomed, first, national prohibition and, then, most longstanding State restrictions on the sale of alcohol. This was due, in part, to the general disillusionment that [Page 820] evidently set in after the Great War; in part, to the Great Depression, which left many people thirsting for diversion that promised to cheer them up in gloomy times.
This shift in sentiment reflected a shift in power from a middleclass, largely rural and small-town America to a nation in which the poor, the foreign-born, and the city dweller became much more important. The region strongest for Prohibition remained the South of the Old Confederacy.[234]
One account of the coming of Prohibition ends with observations that sum up the development I have been describing:
Out of an earnest desire to revitalize and preserve American democracy, middle-class Americans had turned to prohibition as one means of achieving their goal. And having secured prohibition, they now believed that they were passing into a new era of humanity, a new era of struggle, progress, and achievement. It remained to be seen, however, whether in adopting such a perfectionist measure they had overreached themselves; whether in trying to impose a rigid standard of sobriety on the entire nation by law they had undertaken something that the working classes would not accept and that they themselves would often not obey. If so, they would either have to try to enforce the law through measures that smacked of tyranny, or they would have to acquiesce in a defiance of the law that would only create worse evils than the law was designed to cure. In either case the result would be reaction, not progress.[235]
The advocates of Repeal presented themselves as enemies of tyranny, making much of free choice and individuality.
The Twenty-first Amendment has been the only Amendment ratified by State conventions rather than by State legislatures. Congress, which designates the mode of amendment-ratification, selected the convention mode "because proponents of repeal feared that anti-liquor sentiment was dominant in many State legislatures because of the overrepresentation [at that time] of rural areas."[236]
Congress can provide for the use of State conventions in such a way as to turn the selections of delegates for those conventions into a popular referendum on the matter being considered. The only other time this was done, also in order to permit the people rather than the State legislatures to decide the issue at hand, was when the Constitution itself was up for ratification in 1787-1788. If the [Page 821] proponents of the Equal Rights Amendment had anticipated in 1972 the organized resistance they eventually encountered, they would have been well-advised to have chosen the State-conventions mode of ratification. This would have permitted, in effect, a national referendum on an issue that women, as voters, probably could have controlled instead of having to rely upon largely male State legislatures elected in other circumstances and on other issues.
The Twenty-first Amendment was proposed by Congress in February 1933, after Franklin Roosevelt had been elected President but before he took office. It was ratified by December 1933. Repeal was seen by many as a new beginning, mandated by the people directly, just as the Constitution of 1787 had seemed to be one hundred and fifty years before. The despotism of Prohibition was no doubt more benevolent in intention than that of George III, but it was widely condemned as despotism nevertheless.
VIII.
The first section of the Twenty-first Amendment comes right to the point: "The eighteenth article of amendment to the Constitution of the United States is hereby repealed."
The second section of this Amendment reinforces whatever power that the States may have always had to regulate the alcohol industry within their borders: "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."
The second section of the Eighteenth Amendment had provided, "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation." Both Amendments, then, took care not to interfere with efforts by the States to develop their own prohibition measures. Various readings of the Commerce Clause, which had limited what the States could do to interfere with "interstate commerce," were in effect set aside insofar as they bore upon State regulation of the trade in alcohol. [237] This confirmed what Congress had done by statute, before the Eighteenth Amendment, to empower the States to deal on their own with "interstate commerce" in alcohol.
The Twenty-first Amendment refers to the Eighteenth Amendment by number, thereby implicitly numbering all of the Amendments, [Page 822] something which had been anticipated by the numbering of the Thirteenth, Fourteenth, Fifteenth, and Sixteenth Amendments. (The designation, this Constitution, is used in the body of the Constitution but not in any of the Amendments, where the Constitution is again and again referred to.) The series of Amendments, especially when numbered, may thus be seen as a whole, perhaps as a separate constitutional effort ranging across two centuries. But if the series is a whole, it is only as a collection of fragments, responding to one challenge after another rather than incorporating the coherent constitutional "message" that the Constitution of 1787 (and perhaps also the Bill of Rights) does. Even so, as we have seen, the Amendments do illuminate many features of the Constitution of 1787.
IX.
Students of the Prohibition Era are often dubious about any effort today to use the law for "allegedly moral ends."[238] It does seem that the Prohibition experience reinforced in this Country a widespread questioning of the propriety of attempting to legislate morality among us.
The questioners here tend to forget that morality has always been critical to the law both as a condition of law-abidingness and as an end of many laws.[239] It has not been only the Prohibitionists among us, therefore, who have assumed that the community is entitled, and perhaps even obliged, to care for the people's moral condition, especially if that people is to be able truly to govern itself.
One may see throughout the Constitution and its Amendments repeated indications of moral concerns and standards. Various moral and physical failings or vices are ruled out, or at least disapproved of, in those documents, such as high crimes and misdemeanors, felonies, and treason. Morality for us includes respect for liberty (or excellence) and for equality (or justice), however muted these concerns have sometimes been with respect to the status and treatment of slaves and Indians. Various of the rights we claim, such as freedom of speech and of the press, imply duties that accompany the privileges protected. The religious freedom we insist upon is also intimately related to morality. [Page 823]
The Common Law, which is very much taken for granted by the Constitution and the Bill of Rights, is, along with religion, a significant carrier of morality in this Country. The Common Law attempts, through the arguments of lawyers and the opinions of judges, to apply enduring natural- right teachings to the ever-changing circumstances of the day.[240]
Considerable power still remains in the Government of the United States, despite the repeal of the Eighteenth Amendment, to control the production and sale of alcohol in this Country. For example, this power permits Congress to address the abuses of alcohol advertising, just as it has done for cigarette advertising, in an effort to protect the young and the weak from exploitation. We have yet to appreciate the extent to which beer advertising on radio and television has corrupted not only professional but also college athletics in this Country.[241]
But, then, we have yet to appreciate the extent of corruption visited upon us by television itself. Our ineptness with respect to such matters reflects the fact that all too many of us do tend to believe that moral training and the moral tone of the community are beyond both the legitimate purview and the effective control of the community itself. Both self-confidence and self-restraint are needed if morality is to continue to be usefully legislated, however discouraging the ill-fated American experience with Prohibition is believed to have been.
15. AMENDMENTS XX, XXII, XXIII, AND XXV
I.
We return, with these Amendments, to the place of the President in the American constitutional system.
A large part of the space devoted to Amendments since 1787 deals with the President. Some of that is done indirectly, as in Amendments II, III, IV, and XIV. Even more is done directly, as in Amendment XII. None of the constitutional Amendments that bear upon the President are offered as empowerments of the Executive Branch. The considerable changes made since 1787 in the influence and hence powers of the President do not rely upon constitutional amendments. [Page 824]
We have seen that the Civil War was significant in this expansion of Presidential influence. The President became most critical during that war, in that the continued existence of the Country very much depended on extensive military activities¾and that naturally made much more of the Commander-in-Chief.
A Presidency enhanced in this way, however, may still have relatively little effective control over serious domestic developments in this Country, except perhaps in an economic crisis that is so severe as to be warlike.
II.
The Twentieth Amendment designates when the terms of office both of the President and of Members of Congress should end and when Congress should assemble. The Amendment provides as well for what is to happen if the President-elect should die before his term begins and for related matters.
Some of the matters addressed in this Amendment, it is further provided, can be dealt with otherwise, or can be supplemented, by Congress. All of the matters addressed by the Twentieth Amendment had been left by the Federal Convention to Congress to handle as it chose from time to time. To a considerable extent, then, this Amendment was unnecessary.
In fact, surprisingly little of Amendment XX is immune from Congressional rearrangement: it is again and again said that Congress may "by law" alter the dispositions made there. It does seem to be unalterable, however, that the terms of the President and Vice President "shall end at noon on the 20th day of January": that is, Congress cannot "appoint a different day" in the fashion that it can for its January 3rd date of assembly.
Congress, it seems, is to be kept from fiddling with the President's term of office. So long as Congress "assemble[s] at least once in every year," it does not seem to matter as much when Congress does assemble, perhaps partly because Congress can usually be expected to be largely the same from one term to another.
Also unalterable by Congress is the provision, "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." It is an odd feature of this Amendment that nothing is said directly, but only by implication, about "the time fixed for the beginning of the term of the President." Indeed, nothing is said about when any of the terms referred to begin, only about when they should end. This seems to be due primarily to the need to [Page 825] have existing terms cut down when the Amendment goes into effect.
One might question the prudence of removing from Congress the power to consider who should be President if the President-elect dies before he takes office. The Vice President-elect in these circumstances, who can be rather unimpressive, often has not had the seasoning that service as Vice President can provide.
III.
The Twenty-second Amendment reflects the determination by the Republican Party to repudiate the invincible Franklin Roosevelt by establishing as the permanent law of the land the two-term limit that George Washington had established as custom. The Amendment was prepared by the only Congress controlled in both Houses by Republicans since the Hoover Administration more than a half-century ago. It is, strictly speaking, not a two-term limit but rather a two-and-a-half term limit, permitting the President ten years altogether.
This limitation is not likely to mean much in practice: a decade of running for, and serving as, President is probably more than enough for any man: he is likely by then to have done all that he can do for the Country. [242] Nevertheless, it is true that there can be a crisis which makes it appear that only the incumbent can serve effectively as President, but that is almost always an illusion. The serious crisis we could really have some day because of this Amendment would turn around the argument that the description here, acted as President, includes service as the "Acting President" provided for in the Twenty-fifth Amendment. Although it should [Page 826] not be read thus, the argument could still be made, not without some plausibility, especially by the ambitious.
An exception from the two-term limitation is made for the incumbent either at the time the Amendment was proposed to the States or at the time it was ratified (for the remainder of the incumbent's term). The latter provision avoids an upheaval in mid-term; the former provision, as well as perhaps the latter provision, keeps personalities out of the decision by Congress and the States in considering the Amendment. Besides, it was Franklin Roosevelt, not Harry Truman (the incumbent when the Amendment was proposed), that the Republican Party was finally getting even with.
The Republican Party, it seems, is also largely responsible for the recent agitation for terms limitations for Members of Congress as well as for State legislators.[243] It hardly makes sense, however, to permanently exclude from the legislative councils of the Country our more experienced elders. The January 1991 debates in Congress about the prospects of a Persian Gulf war pointed up the usefulness of having there some members with recollections of similar circumstances they had confronted as members of Congress a generation before, something that the currently proposed twelve-year limitation would deprive us of. What other major enterprise in this Country, or government elsewhere around the world, thus deprives itself of seasoned personnel?
The agitation for terms limitations reflects the spirit of equality and mobility (or liberty) among us. It is to be hoped that Congress, if only out of self-interest, will resist those who would, with perhaps the best of intentions, subvert the institutional memory of Congress.[244]
IV.
The Twenty-third Amendment, to which I return in my next Lecture, provides that "[t]he District constituting the seat of government of the United States," the place we call the District of Columbia,
shall appoint . . . [a] number of electors of President and Vice [Page 827] 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 . . . .
The vote of the people of this District, so far as this Amendment is concerned, applies only to the election of the President and Vice President, not to the choice of members of the Senate or of the House of Representatives. It was evidently believed by the framers of this Amendment that these people, who have long had a say in their local government, should be able to participate as well in national elections. But the only national election that now counts, it sometimes seems, is the Presidential election.[245]
In some ways, however, the Twenty-third Amendment is little more than a token recognition of the political rights of the residents of the District. The few electoral votes for President and Vice President to which they are entitled here will rarely have a significant effect on the outcome of a Presidential election. Residents of the District would obviously have much more effective say about those who could look out for their interests if they could choose voting members of Congress.
Even with respect to Presidential elections, the residents of the District are not to be fully like citizens in the States, for they can have no more votes than the least populous State. This means, in practice, three votes. A constitutional amendment was proposed by Congress in 1978 to have the District of Columbia treated as a State for national elections purposes, but that failed of ratification. The power rests in Congress to admit the District to the Union as a regular State. This is something that Congress is able to do without either Presidential approval or the approval of the States (except perhaps the States which originally ceded the land used for the District).[246]
Whatever the effect of the Congressional-empowerment section added to various Amendments since the Thirteenth, it does seem superfluous here. The opening sentence of the Amendment pro-[Page 828]vides that the District's appointment of electors shall be done "in such manner as the Congress may direct." That alone should assure Congress of all the power it needs to enforce provisions of this Amendment.
V.
The Twenty-fifth Amendment is devoted to Presidential succession, Presidential disability, and Vice Presidential replacement.
The dominant concern here is that the Country be able to identify who properly exercises, at any particular moment, the powers of the President. This is especially important when much is made of the President as Commander-in-Chief.
This concern does not account, however, for the provision in this Amendment for a Vice President whenever that office is vacant. Before the Twenty-fifth Amendment was added to the Constitution, succession to the Presidency in such circumstances was prescribed by an act of Congress. This usually meant that the Speaker of the House was next in line, which could be "certain" enough.
But this could mean a shift of the Presidency from one political party to another, something which is now considered somewhat dubious. Besides, this could also mean that the new President might be too much under the influence of the Congress which had in effect selected him. This seems to offend modern sensibilities nurtured by more and more reliance upon the Presidency.
The Framers, on the other hand, drafted a Constitution which leaves Congress in charge of the Country, at least so far as the Branches of the General Government are concerned. It is likely, we have noticed, that they expected that most of the time the President would be chosen by the House of Representatives after an inconclusive casting of ballots by the Presidential electors in the several States. We have also noticed that the rise and discipline of political parties changed that.
VI.
However much Congress has been eclipsed by the President in the Twentieth Century, it is still difficult to avoid ultimate reliance upon Congress to determine who should at any particular moment be, or at least act as, President. This is evident in the extended provision in the Twenty-fifth Amendment for Presidential disability, something which may account better for the Vice President-replacement provision than anything I have said thus far.
The provision for filling the vacated office of Vice President may [Page 829] be justified primarily as a condition for the most efficient response to Presidential disability. It is much easier to have the Vice President than, say, the Speaker of the House of Representatives temporarily take over the office of a disabled President. This is related to another provision in the Twenty-fifth Amendment, the creation of the position of Acting President.[247]
The addition of a disability provision was spurred by recollections of the protracted, debilitating illness of Woodrow Wilson, the death in office of Franklin Roosevelt, and the illnesses of Dwight Eisenhower. The Amendment was ratified four years after John Kennedy's assassination.
Any disability provision, if it is to anticipate instances in which the President may not only be unaware of his disability but may even contest the opinions of others that he is disabled, is bound to be complicated. Amendment XXV provides in part:
Sec. 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.
Sec. 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 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, [Page 830] 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.
We can see here another reason for having a Vice President on hand, rather than relying on either the Speaker of the House of Representatives or the President pro tempore of the Senate to be next in line: if Congress is obliged to settle any disability dispute between the President and the person next in line (in association with "the principal officers of the executive departments"), it would hardly do to have the one next in line be stationed in the Congress. The complications in the disability provision invite speculations regarding the assumptions about human nature implicit in this Amendment.
The two-thirds vote of both houses of Congress required if the Vice President is to prevail over the President here is the same proportion needed for the Senate to remove a President from office after impeachment by the House of Representatives. The Twenty-fifth Amendment cannot be used to "remove" an unwilling President (by declaring him disabled) when those who would "remove" him do not have at least both the House of Representatives votes needed (a majority) to impeach him and the Senate votes needed (two-thirds) to convict him upon an impeachment.
VII.
The provision in the Twenty-fifth Amendment for replacement of the Vice President can remind us of the mode originally intended for the selection of both the President and the Vice President by the "Electoral College." [248] That is, it was expected that selections would be made not directly by the people at large but rather after thoughtful deliberation by electors chosen, one way or another, by the people.
I have suggested that, considering how their running mates have come to be chosen by Presidential candidates since the Second World War (if not well before), it would now make more sense to [Page 831] have the newly-elected President nominate a Vice President in the manner prescribed in the Twenty- fifth Amendment when there is a vacancy in the office of Vice President. I suspect we would usually get better Vice Presidents that way, Vice Presidents who would at least seem to be somewhat less the products of chance than all too many have been. No constitutional amendment would be needed to bring about this reform, since the Presidential candidates of the major parties could let it be understood that their running mates for election purposes would resign immediately upon inauguration, or perhaps just before being sworn in, permitting the newly-in-stalled President to send to the Congress his nominee for Vice President.
Whatever may be done about reforming the Vice President-selection process, it is hardly likely that any approach to Presidential selection that depends on the judgment of any deliberative body would be generally accepted today. Rather, it may be that all that thoughtful citizens can do these days is to keep the United States from resorting to direct popular elections of Presidents, an innovation that we do hear agitated from time to time. It remains difficult to determine what the consequences of such a change might be. Is it not likely to confirm, if not even to reinforce, certain questionable tendencies implicit in the Presidency, at least in the Twentieth Century? Particularly troublesome here would be any further strengthening of the President in his relations with Congress.
VIII.
One formidable obstacle to any effort to cut the Presidency down to constitutional size is that modern Presidential politics "plays" much better on television than does Congressional politics. Television dotes on the Presidency; it does not matter whether the incumbent is personally hated or loved by the mass media.
The President is easy to dramatize; the Congress tends to be boring. "All" the Congress does is talk (or deliberate); the President acts (with little or no show of deliberation required). That which can be readily presented by television in an "interesting" way affects what we are now apt to consider government to be.
Whether what television usually presents is truly interesting is another question. But it can come to dominate what people take to be significant, and this can affect what political men do and how they present themselves. It can also affect our education as well as theirs, going along with, and promoting, shallower politics, if not a shallower people. Consider, for example, the recent report that to- [Page 832] day "only 51 percent of American adults read a newspaper each day, down from 73 percent in the 1960s."[249]
The modern ascendancy of the Presidency is related also to the movement toward universal suffrage, something which we will examine in our next Lecture. Who the President is, or how extensive the franchise is, may matter less if it should be recognized that a somewhat representative and seriously deliberative body is really in charge of the Country.
IX.
The key question now may not be who precisely is President or when his term begins or who can vote for him. Rather, it must be asked, what is the President to be able to do?
The presumptuousness of Presidents, especially during the past half-century, has been disturbing. This should be contrasted with the deference toward Congressional authority displayed repeatedly by George Washington and Dwight Eisenhower.
Presidential presumptuousness had been dramatically exposed during the Iran arms-Contra aid scandal in 1987. The prerogatives of the Congress were usurped by that Administration in what it did in selling arms and "appropriating" money in a clandestine fashion. A decade earlier there had been the Watergate scandal, which had seen clumsy attempts by another Administration to usurp the prerogatives of the electorate during a Presidential election campaign.[250]
Despite the chastening effects of those two dubious episodes, the Presidency has once again exhibited in recent years a spirit foreign to that expected by the Framers of the Constitution, but this time in a form that is, at least so far, less obviously dubious to the people at large who do not yet appreciate the enormity and implications of the damage done by us in our Gulf War. We are still too captivated both by the brilliance of our efforts and by the evils of our principal adversary on that occasion.[251] [Page 833]
It should be evident from these developments both what the 1787 Framers were fearful of at the hands of anyone who wields the powers of the Commander-in-Chief and how profound transformations (including an incipient Caesarism) can take place in a constitutional regime without any authorization by formal amendment of the Constitution.
16. AMENDMENTS XXIII, XXIV, AND XXVI
I.
The Declaration and Resolves of the First Continental Congress, October 14, 1774, includes the following passage:
That the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS: . . .
That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore taxed and accustomed . . . .
It is this ancient "right of the people to participate in their legislative council" that underlies the movement in the United States toward universal suffrage evident in the Twenty-third, Twenty-fourth, and Twenty-sixth Amendments. I suggested in my last Lecture that the modern ascendancy of the Presidency is related to this movement.
This movement toward universal suffrage may be seen also in several of the Amendments we have already discussed, including those assuring the vote for emancipated slaves and their descendants [Page 834] and for women. The growing recourse to universal suffrage is manifested in several ways.
It is most obvious in making the vote available to more and more groups in the Country, including those that were once excluded on the basis of race, gender, or age. It is also obvious in the making of more and more public posts subject to selection by the electorate, while at the same time keeping qualifications for such posts to a minimum. We now have popular elections of Senators; there is the agitation, from time to time, for popular election of the President that we have noticed.
Following upon, and reinforcing, this movement toward universal suffrage is the growing reliance upon increasingly sophisticated public opinion polls. As more and more depends on divining what the public believes, and what it believes it wants, the fewer moderating factors there are likely to be in the development of public policies.
II.
We return now to the Twenty-third Amendment which we have already considered for what it tells us about the role and influence of the President today. Presidential selection is the primary concern in this Amendment on behalf of the residents of the Federal District.
It is taken for granted in the Twenty-fifth Amendment, as it is in the other Amendments dealing with voting rights, that for the most part voters will be designated, and the conduct of elections will be provided for, by local governments. Local election laws are devised in the District of Columbia by Congress or by whatever local government may be authorized by Congress for the District.
These local election laws and their application are subject to review, by the Congress and Courts of the United States, in the light of constitutional standards, whether the standards are of a general character or are primarily concerned with elections. In addition, Congress has always had, under the Constitution, power (rarely exercised) to modify considerably the election laws of the States, even when such laws are constitutional.
Congress attempted to go even further than the Twenty-third Amendment on behalf of the residents of the District of Columbia by proposing, in 1978, a constitutional amendment to this effect:
For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, [Page 835] the District constituting the seat of government of the United States shall be treated as though it were a State.
Congress would have provided for the exercise of the electoral rights of the people of the District pursuant to this amendment.
This proposed amendment of 1978, which failed ratification, would have repealed the Twenty-third Amendment. It remains to be seen whether Congress will, in furtherance of the principal purpose of this proposed amendment, exercise the power it does have to admit the District of Columbia to the Union as a State.
We are reminded by these considerations of the role of the legislature (whether National or State and Local) in directing all kinds of activities, including electoral, executive, judicial, and Constitution-amending activities.
III.
We have seen that the voting referred to in the Twenty-third Amendment applies only to the election of the President and Vice-President. The officers dealt with in the Twenty-fourth Amendment are expanded:
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.
Even so, such expansion leaves this Amendment with less coverage than others such as the Fifteenth and the Nineteenth (and, later, the Twenty-sixth) Amendments, which apply to all elections in the United States, State as well as National.
The Twenty-fourth Amendment is the only constitutional provision thus far which explicitly recognizes the role of political parties in the American political system. This it does by governing "primary or other election[s]." The primary elections referred to are those in which the candidates of political parties are chosen. This precaution was believed necessary here because of the efforts once made in some States to circumvent anti-discrimination prohibitions, by having the critical election choices made by privileged voters in party primaries, not in general elections governed by those prohibitions.
It does not seem that the poll tax was a significant restriction upon voting by the time the Twenty-fourth Amendment was ratified in 1964. That tax can stir up ancestral memories of repression, however, which have been evident in the sometimes violent controversy [Page 836] the past decade in Great Britain about a levy called a poll tax by its opponents.
IV.
The Twenty-fourth Amendment, with its elimination of the "failure to pay any poll tax or any other tax" as a factor in any voter's eligibility (at least in national elections), testifies to the now prevalent opinion that financial considerations or economic interests should not bear upon one's eligibility or power to vote.
Why did not this Amendment cover State elections as well? The taxes dealt with were State revenues, sometimes fairly substantial revenues, with control of access to the ballot as an important aspect of the efforts to collect the needed money. May Congress regulate State control of access to the ballot? If it can, it would want to consider the legitimate uses of this power by the States, which can include property and other qualifications for a variety of special local elections.
We must wonder whether the deep-rooted drive for equality in this Country is likely to undermine, if not a respect for discriminating choices, at least any conditions designed to make sensible choices more likely. [252] Thus we have seen educational requirements ruled out as a basis for voters' eligibility, in part because they have obviously been used on occasion to exclude certain people arbitrarily and unfairly.
Corrective measures here have come from both Congress and the Courts. It is now generally accepted that whatever advantages the wealthy and the educated may have in practice, there should be no special provision for them in the law. But we have gone further than this, in effect, perhaps without recognizing what is happening. This may be seen in the elimination, both by amendments and by changes in practice, of institutional arrangements that had been intended to encourage, as well as to permit, formal deliberation, especially in choices of officers of government such as Senators and Presidents.
Whatever restrictions there had once been on voters' qualifications, including education and moral restrictions, were restrictions imposed from the beginning of the Republic by the States. By and large, the Constitution of 1787 relied upon republican States to designate and qualify voters. The efforts of the Nation for two centuries now, whether by amendments or by statute, have tended [Page 837] both to expand the electorate and to nullify State restrictions. Less and less provision is made, or is permitted to be made, by law for the calibre of voters as such. This means that we must take our general educational system more seriously, if only to help people learn to whom, if not to what, they should defer in making the important political decisions they do.
V.
The Twenty-sixth Amendment provides,
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.
With this provision, the final Amendment to the Constitution thus far, we have probably taken assurances for the rights of people as voters about as far as we can go.
We are not apt to set the voting age much lower than eighteen. Students in high schools and grade schools do participate in school elections and student councils. But the lowering of the general voting age to eighteen had been prompted, in large part, by the eligibility of eighteen-year-olds for military conscription. If the draft age should ever be lowered, Congress on its own might want to lower the general voting age as well, arguing that this is an exercise by Congress of a power necessary and proper to carry into execution its war powers.[253]
It is only when youngsters go off to war, or live apart from their parents, that they are apt to exhibit much concern about a right to vote. To give "unemancipated" children the vote simply adds, in the typical situation, to the votes that their parents control. Even so, the young have considerable influence because of their tastes (as in music) and because of their considerable spending power.
We notice that the Twenty-sixth Amendment applies to State as well as to National elections. The principal spur to the speedy formulation and ratification of this Amendment in 1971 was the prospect of an impending general election which would have had, because of Congressional and Judicial developments, different constituencies for the National and State officers on the ballots of various States, an awkward situation indeed. This Amendment does [Page 838] testify once again to the American impulse to include as many as possible, as soon as possible, in the national political body.
VI.
Restrictions on voting remain to this day, including requirements with respect to registration and residency. Related questions have to do with the extent and significance of subdivisions within a State and, for that matter, with whether or how the States themselves should count in national elections.
What should the status of resident aliens be in American elections? Is it not sensible that they should be able to have a say in those local elections in which such an element as property owner-ship or having children in the school system is the key to the eligibility of voters?
It has long been evident to the American people that other rights and various conditions and privileges are related to the right of suffrage. No matter what one's condition (for example, mental incompetency), one is entitled to, say, due process of law when one is about to be deprived by some government of life, liberty, or property in this Country. But the right to the vote has always depended somewhat on legislative determination, probably necessarily so.
We have seen again and again that once any group gains effective access to the ballot, other privileges and immunities are apt to follow. We can see, for example, how women have been able, because of their obvious voting strength, to secure by legislation the rights and privileges that had been sought through the Equal Rights Amendment. And whatever Congress and the State legislatures do not provide, enterprising Courts (which are aware of election returns) are likely to supply, drawing on the Fourteenth Amendment.
VII.
Who "We the People" are, including what follows from this identification, has been spelled out for two centuries now. Consider, for example, the recent report that New York City, perhaps the greatest metropolis in the Western World, now has a majority of minorities. It is said to be "the most ethnically and racially diverse city in the world."[254]
Having expanded our electorate to virtually its natural limit, we [Page 839] have seen that this extension includes expanding significantly the scope of the matters that the electorate decides directly. A related development has been the restriction of the powers of States as separate entities, a development that goes back to the Civil War Amendments.
We have done all this, we suspect, without adequate provision for either the quality or the civic attachments of the electorate. Should we not want the thoughtfulness, not the number, of the people voting to be our principal concern? How would we regard these matters if there were here, as in some other countries in the Western World, penalties or inducements designed to promote a higher rate of participation by the people in elections? Is anyone who has to be encouraged to vote not likely to care enough to inform himself properly about the issues under consideration?
We have seen in the Twentieth Century that making our system more and more democratic (but not by going as far as was done in ancient Athens, where key officials could be routinely chosen by lot) does not automatically help us to solve our most pressing problems. Radical democratization may even intensify those problems, if not bring on some of its own.
The growing democratization of the election process in this century is now being matched, at least in this Country, by more and more efforts to limit the activities of government. Now that almost all of the adults legally in this Country are able to vote and to choose more officers directly (including judges in many States), some advocates are looking, as solutions to our deepening problems, to more and more shackling of the governments that the people can choose. The people are encouraged to do more and more of the legislating themselves, which is what much of the constitutional amending currently advocated amounts to.
This development, reinforced by growing reliance on public opinion polls, suggests that we may be moving from a republican regime grounded in representative legislatures to a plebiscitary democracy in which much is made of Presidents and other executive officers who cannot fail to disappoint the expectations of those who depend on them, both at home and abroad. This has been most recently evident in the calamities visited upon people in Iraq, especially upon those (such as the Kurds) who have not yet learned that one should not put much trust in princes, even when one of them happens to be a President of the United States. [Page 840]
17. THE CONSTITUTION IN THE TWENTY-FIRST CENTURY
I.
There have not been, for two decades now, any amendments to the Constitution, except perhaps for the 1992 "ratification" by State legislatures of the 1789 Congressional-pay proposal. Two amendments proposed by Congress during this period¾the Equal Rights and District of Columbia proposals¾failed of ratification.
Informal constitutional adjustments continue to be made, of course, and some of these can eventually have the effect of formal amendments. We have seen, for example, what has become of the original reliance on State electors for the selection of Presidents. The emergence of political parties is reflected in how Presidents are in fact selected, with the actions of State electors having long been little more than a formality that could (perhaps should) be eliminated. Less dramatic have been some of the technical changes in the jurisdiction and activities of the Courts of the United States.
We should be aware, furthermore, of how limited in effect various formal amendments have been. Some amendments have been precise enough to be easily enforced by a people determined to use them, such as the ban on slavery in the Thirteenth Amendment, the provision for women's suffrage in the Nineteenth Amendment, and the electoral empowerment of eighteen-year-olds in the Twenty- sixth Amendment.
But many of the most illustrious amendments, those that make up the Bill of Rights, had little if any immediate effect after their ratification. This is not only true of the Tenth Amendment, which has long been recognized by many as mostly a truism (to the effect that the government of the United States indeed has the powers it has), but it is true of most of the first eight Amendments as well, confirming as they did various rights that the American people of 1789 had always believed they were entitled to and were already exercising.
It is again useful to notice that the Constitution and its Amendments presuppose an established constitutional and legal system. The Amendments ratified from time to time have, in order to avoid repudiation, either confirmed rights already recognized or adjusted arrangements in a way consistent with the overall system. American experience with the Eighteenth Amendment illustrates what is likely to happen if an amendment does not fit in with what is already there. [Page 841]
II.
When we look ahead to the Twenty-first Century, it is instructive to notice the amendment proposals that might be considered during the next two to three decades, the opening quarter of the upcoming century.
Some proposals are likely to be impulsive responses, all too often exploited by the cynical, to passing provocations, such as the amendment advocated as a response to occasional desecrations of the Flag. The immediate stimulus in these cases can be a judicial interpretation of the Constitution. Judicial interpretations that have affected the implementations of treaties, public school prayers, and access to abortion have in turn led to amendment proposals.
We hear considerable talk of balanced-budget and legislative terms- limitations amendments. Both would be troublesome if ratified: the first (another exercise in constitutional frivolity) because it is not likely to work, thereby disillusioning and perhaps demoralizing people; the second because it is likely to "work," thereby crippling the government of the United States.
Those who recognize how a balanced-budget amendment could readily be circumvented by both legislatures and executives suggest other ways of accomplishing their purposes. One proposal is that a limitation be placed on the amount of taxation that is permitted annually. But circumvention is likely here also, as may be seen in how State governments have had to work their way around such limitations. In fact, no mechanical rule or formula can take the place in such matters of political judgment, on the part of both the people and their government, if there is to be sound guidance of the economy in varying circumstances. Such guidance depends on sensible assessments not only of the causes and consequences of deficits but also of the costs, consequences, and desirability of balancing the national budget at any particular time.[255] Here, as elsewhere, myths and misinformation have to be reckoned with. Many of these questions about economic and fiscal policies are really [Page 842] questions about human nature, which are better addressed directly, and preferably by legislatures.
Those who recognize that terms limitations for legislators can truly be crippling look to other remedies to deal with what they conceive to be the underlying problem. One set of remedies has to do with changes that could reduce the advantages of incumbency, including limitations on political contributions and campaign expenditures. Various of these remedies, too, are more appropriate for legislation than for constitutional amendments, especially since experiments are apt to be needed.
It is often said that those who hold legislative offices today are virtually impossible to defeat. But this is not, as many seem to believe, because incumbents are immune from public scrutiny and control. On the contrary, incumbents these days tend to be very sensitive, perhaps unduly so, to the opinions of their constituents. Indicative of what has long been happening is the fact that incumbents do say quite different things on the issues of the day, depending on precisely where they are from and what electorate they depend on. Public opinion polling makes it easier for each incumbent to tailor his words and deeds to the opinions and desires of his constituents. It should be instructive, moreover, to consider what changes there really have been, in recent decades, in the average length of service of national legislators.[256]
It is likely, or so it seems to me, that most if not all of the constitutional-amendment matters being agitated these days would be much better dealt with through legislation that can be readily adjusted and, if need be, discarded as circumstances change.
III.
I do not mean, by my reservations about the proposed amendments of our day, to suggest that the Constitution is now perfect, but only that most proposals we hear for its amendment either would not get far, or would not be likely to have the effects intended by their proponents, or would do better as legislative proposals.
I myself continue to believe, for example, that much is now to be [Page 843] said for routinely choosing all Vice Presidents the way that the office of Vice President is filled when it falls vacant between elections. The mode provided in the Twenty-fifth Amendment, which induces the President to nominate someone that the Congress is likely to approve, would make it far more likely that greater care would be used in selecting Vice Presidents than we have witnessed during the hurly-burly of our quadrennial political conventions in recent decades. The mode I propose hearkens back, in spirit, to the original Electoral College mode of selecting Presidents.
Also to be encouraged are serious proposals that would restore effective local government. It is hard to deny that much is likely to be lost when the Country is made up of a quarter of a billion people, instead of the three million of 1787. Can the American Union be effectively "broken up" for certain purposes? Or do we need, instead, to consider further integrating both Canada and Mexico into our economic, if not political, Union? Can only an effective world government permit the responsible elimination of national armed forces that would make executive power less needed and local autonomy more feasible?
Neither a humane world government (in which countries would likely be represented by their chief executives) nor effective local autonomy seems to be immediately available. But neither would have to be looked to as much as they are if there could be greater reliance among us upon personal (but not an apolitical) self-sufficiency and integrity, something that each of us should be able to do something about wherever we happen to be.
IV.
Most of the concerns we encounter these days for constitutional amendments take the form of curbing either the Congress or the Courts. How deep these concerns really run may be questioned, especially if the American people should, by and large, be fairly well satisfied with their way of life.
Far less is heard these days about the need to place curbs upon the Presidency.[257] Rather, various of the changes suggested (such as the line-item veto, terms limitations for Congress, and the direct [Page 844] election of the President) would tend to strengthen the Presidency even more than it has naturally been in an era of perpetual crisis. Transformation of our National Government into a parliamentary system, dominated in effect by the President, is sometimes advocated as a means of avoiding institutional "deadlock." This transformation (with or without proportional representation) would require radical changes, with unpredictable consequences, in our deep-rooted bicameral legislative arrangements as well as in our way of choosing the President. Furthermore, a parliamentary system depends for political stability on public opinion less volatile than ours can sometimes be. Experiments along these lines might better be made first in a few of our States.
Should the Presidency, in the system we now have, be confined? Or should it be recognized for what it has become and perhaps has to be? What is the status, for example, of the 1973 War Powers Resolution?[258] Should not more reliance be placed upon the exclusive Congressional power to declare war? Congress already has the power to curb adventurous Presidents, beginning with the severe cuts it can make in military and other appropriations. What is needed here, then, are not constitutional amendments but rather the willingness of an alert Congress, urged on by an informed people, to exercise properly the power with which Congress has been entrusted by the Constitution.
The constitutional lessons of the recent Gulf War are yet to be drawn. The more we see of the disastrous consequences of that war, some of which (already apparent) were predicted and others of which will take years to observe, the sounder the much more cautious pre-war Congressional judgment appears to have been on that occasion. Much of the high-minded talk about a new world order we once heard from "hard-liners" is already being shown up as hollow moral posturing¾and innocent people in the Middle East (or, at least, people probably as innocent as we are) have suffered grievously by the hundreds of thousands in part because of what we have and have not done.
The moral sensibilities of our leaders need to be rigorously questioned in such situations. Fundamental to our capacity to govern ourselves, and fundamental also to our power to provide our leaders the curbs and guidance they need, are our right and ability to judge the governments upon which we do have to rely. Critical to [Page 845] our ability to judge properly are our character and education as a people.
V.
I have touched upon various institutional reforms that have been suggested in this Country from time to time. This survey has not been offered as exhaustive but rather as illustrative of the issues here. I attempt thereby to suggest how such constitutional-amendment proposals should be assessed.
Other amendment proposals look more to the assertion of the personal rights of citizens. What, for example, remains to be mined out of the Ninth Amendment? Can the Courts be relied upon to develop "the right of privacy"? Or is that better left to the Legislatures of this Country (State as well as National) to deal with? Certainly, much has been done, and continues to be done, by statute. A reliable assessment of what the Courts should do here could well begin with a careful study of the political as well as the legal and constitutional consequences of the judicial intervention in the abortion controversy in recent decades.
One vital right implicitly recognized by the Ninth Amendment should be reaffirmed (reaffirmed, but not exercised) from time to time. That is the great right of revolution dramatically exercised in Magna Carta. Sober reaffirmations of this right and duty serve to remind us that there are standards¾enduring moral and political standards grounded in "the Laws of Nature and of Nature's God"¾that can and should be looked to in judging what our governments do.
VI.
Still another kind of constitutional amendment is likely to be proposed more and more in the coming decades: amendments providing for various social and economic "rights." Models are available in numerous constitutions and declarations around the world. These include rights to a living wage, to education, to medical treatment, and to family assistance.
In some respects the expositions of these rights presuppose a political system that is not itself examined. Are not the constitutional amendments that might be relied upon here likely to be either unduly confining or simply ineffectual? Most people in this Country still tend to believe that the objectives sought to be served by such declarations are better dealt with through the constantly changing political process and by the maintenance of a sound economy [Page 846] which permits a steady rise in the general standard of living, a standard of living which in turn permits both governments and private parties to address the dislocations and misery perhaps inevitable in any large- scale institutional arrangements. Whether part of that misery, of rich and poor alike, can be traced back to the generally-accepted article of faith that we should become more and more comfortable is a question that we should consider seriously in the coming decades.
One consequence of the virtually universal adult suffrage we now have in this Country for citizens is that underprivileged groups can better make themselves felt in the political process, if only they can be organized to do so. The powers of the Government of the United States are recognized to be so extensive that that government now can do whatever we believe needs to be done to serve the social and economic needs of the American people.
It remains to be seen, however, whether artificial constitutional barriers will be erected that will interfere with what may need to be done with affirmative-action, population-control, moral-training, cultural-enrichment, and other such programs. Both National and State Governments have much to do here, however skeptical we should all remain about what Government can do. Our underlying need is (and perhaps always has been) with respect to education, looking to the best that is available.
By and large, we must insist, the Constitution should not be understood to keep us from doing what is good and sensible.
VII.
What, then, are the amendments we truly need? They would genuinely be amendments in the sense of making things better.
The moral judgment, including the sense of civility, of our people should be a constant concern. This includes that reaffirmation of natural right to which I have several times referred in the course of these Lectures. Virtue is more likely these days than two centuries ago to be seen primarily in terms of private rather than of public conduct. Much more needs to be made among us of civic virtue, hearkening back to the time when the best people in this Country, who were generally recognized to be such, went mostly into politics and into the ministry (a different form, perhaps, of politics).
A mature people, morally and politically, is less likely to be imposed upon by its leaders. Consider, for example, how we have been deliberately manipulated in recent years by images of such [Page 847] despicable characters as Willie Horton (1988) and Saddam Hussein (1990-1992). Irresponsible sloganeering has usurped the place of serious discussion.
Vital to the proper training of our people, generation after generation, is that the community should be persuaded that it is entitled and obliged to do much here, both directly and indirectly. In such training the emphasis should be placed more on duties than on rights. Even so, a proper regard for rights can promote a sense of dignity¾and that in turn can contribute to taking one's duties seriously.
The problem of the integrity of our people can be critical here. Charles de Gaulle, in dealing with the French once asked: "How can you be expected to govern a country which has 246 kinds of cheese?" [259] Similarly, we can ask, how is it possible to train our people properly when the dramatic arts (including sports) and public discourse are as fragmented and polluted by selling as ours have become? That we put up with so much relentless, if not brutal, exploitation of our legitimate interest and attention is remarkable. What is not remarkable is that our experience in and ability for serious discussion should be deteriorating, especially as we become more and more accustomed to being entertained and less and less resentful of being exploited. Instead, we are much more likely to resent, if not even to penalize, those who presume to question our tastes, our illusions, and our transformation into mere consumers.
A self-confident community depends in the modern world on a constitution that a people recognizes should and can be read with care, a constitution that is, because of its scope, useful in a variety of circumstances. It is remarkable that extended discussions of the Declaration of Independence, of the Constitution of 1787, and of its Amendments can have the respectable audiences they have had during one Bicentennial celebration after another since 1976. The American language and experience still permit, if not encourage, our politics to be sensible.
I have heard that love sentiments are easier to convey in Italian or modern Greek or Spanish than in English. Has this, if true, helped to keep Americans from becoming too skilled in matters of love? Have we, as perhaps the preeminent self-governing community in modern times, been better off in being "naturally" better at politics than at something so promising and yet so self- absorbing and distracting as love? To what extent is our escalating appetite [Page 848] for personal self-expression (both in public and in private) an ill-conceived attempt to make up for growing deficiencies among us with respect to both politics and love? Particularly to be guarded against by a self- governing people is any deficiency in knowing what in human beings and in citizens is truly to be cherished.[260]
The Editors have complied with the author's stylistic preferences in this Article.¾Ed.
* This Commentary is based largely upon the Centennial Lectures delivered at Lenoir-Rhyne College, Hickory, North Carolina, during the 1990-1991 academic year. This Commentary, with additional appendices, is to be published in book form. The author is grateful for the help provided him at Lenoir-Rhyne College by John E. Trainer, Jr., J. Larry Yoder, Marianne Yoder, Joseph S. Mancos, and Beverly Heer, and by Stephen J. Vanderslice of Louisiana State University at Alexandria.
The author has prepared a similar Commentary on the United States Constitution. GEORGE ANASTAPLO, THE CONSTITUTION OF 1787: A COMMENTARY (1989). An earlier version of that book appears at 18 LOY. U. CHI. L.J. 15 (1986). For a complete bibliography of the author's books, articles, and lectures, see 2 LAW AND PHILOSOPHY: THE PRACTICE OF THEORY; ESSAYS IN HONOR OF GEORGE ANASTAPLO 1073-1145 (John A. Murley, Robert L. Stone, and William T. Braithwaite eds., 1992).
** Professor of Law, Loyola University Chicago School of Law; Professor Emeritus of Political Science and of Philosophy, Rosary College; and Lecturer in the Liberal Arts, The University of Chicago. A.B., 1948, J.D., 1951, Ph.D., 1964, The University of Chicago.
. . . .
210. "History" may also be responsible, at least in part, for the extra- constitutional changes, such as with respect to both judicial review and the enhancement of Executive Power, matters that we will consider further in Lecture No. 17.
211. Consider the implications of the Thirteenth and Fourteenth Amendments: they limit the National Government, but not with respect to matters of concern to the Framers. But see supra note 204.
212. Pollock v. Farmers' Loan & Trust Co., 158 U.S. 601 (1895).
213. Dennis J. Mahoney, Seventeenth Amendment, in 4 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, supra note 4, at 1665.
214. That had been the way State delegations typically were expected to act in Congress under the Articles of Confederation, where the State legislature had the power of recall. Would omission of the stipulation about each Senator having one vote have raised the question whether the former power of the State legislatures had somehow been revived?
215. Deborah L. Rhode, Nineteenth Amendment, in 3 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, supra note 4, at 1315.
216. A substantial minority of law students today mistake the Equal Rights Amendment for the Nineteenth Amendment. Does this reflect the fact that we generally regard the right to vote as the key to most, if not to all, of our other rights? For suggestions of how supporters of the Equal Rights Amendment could have more effectively used their political power in getting this amendment ratified, see infra Lecture No. 14, § VII.
217. JAMES H. TIMBERLAKE, PROHIBITION AND THE PROGRESSIVE MOVEMENT 1900- 1920, at 166 (1963); William F. Swindler, A Dubious Constitutional Experiment, in LAW, ALCOHOL, AND ORDER 53-54 (David E. Kyvig ed., 1985) [hereinafter KYVIG].
218. See TIMBERLAKE, supra note 217, at 145, 147, 171, 173. But see Swindler, supra note 217, at 55 ("[The Eighteenth Amendment] was then, and remains to date, the only constitutional attempt to incorporate a sumptuary power into the fundamental law of the land.").
219. In 1913, alcohol could be referred to as "a narcotic poison." TIMBERLAKE, supra note 217, at 170.
220. TIMBERLAKE, supra note 217, at 183; see ANASTAPLO, THE CONSTITUTIONALIST, supra note 66, at 154-57.
221. See TIMBERLAKE, supra note 217, at 164, 180.
222. See supra Lecture No. 13, § III.
223. See WYOM. STAT. § 8-4-103 (1977) (Declaring December 10 "Wyoming Day" in recognition of "the action of the Wyoming territorial governor on December 10, 1869, in approving the first law found anywhere in legislative history which extend[ed] the right of suffrage to women."); supra Lecture No. 13, § V.
224. See TIMBERLAKE, supra note 217, at 125.
225. 41 Stat. 305 (1919); see Dennis J. Mahoney, Volstead Act, in 4 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, supra note 4, at 1978-79.
226. This formulation did permit the continued use of intoxicating liquors for medicinal, sacramental, and other such purposes. TIMBERLAKE, supra note 217, at 183.
227. U.S. CONST. amend. XVIII, § 1. This grace period was intended, in part, to permit holders of stocks of alcohol to dispose of them by sale or otherwise, whether in this Country or abroad. Also, it was suspected by some, that the grace period was intended to permit those with sufficient resources to accumulate a substantial supply, perhaps even a lifetime supply, for their personal use.
228. See, e.g., TIMBERLAKE, supra note 217, at 1-4, 125-27.
229. TIMBERLAKE, supra note 217, at 177.
230. Id. (quoting CONG. REC., 65 Cong., 1st Sess. 5587 (1918)).
231. See supra note 178.
232. See TIMBERLAKE, supra note 217, at 62. One problem with this argument is that it assumed that the State legislatures could not do by ratifying a constitutional amendment what they could do in prohibiting alcohol in their respective States.
233. See, e.g., Swindler, supra note 217, at 61; George Anastaplo, Governmental Drug-Testing and the Sense of Community, 11 NOVA L. REV. 295 (1987).
234. See TIMBERLAKE, supra note 217, at 228.
235. Id. at 184.
236. Dennis J. Mahoney, Twenty-First Amendment, in 4 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, supra note 4, at 1928.
237. See Swindler, supra note 217, at 56, 57-58, 63.
238. Paul L. Murphy, Societal Morality and Individual Freedom, in KYVIG, supra note 217, at 78. Similar complaints may be heard with respect to right- to-life, school-prayers, and other efforts.
239. Thus, the Ten Commandments legislated, or at least confirmed, the morality of Moses' day. On the "legislation of morality," see ANASTOPLO, HUMAN BEING AND CITIZEN, supra note 11, at 46, 74.
240. Consider the implications of § 5 of the Northwest Ordinance about what are considered generally accepted legal arrangements that government can properly draw upon. See also supra note 68.
241. On the abolition of broadcast television, see ANASTAPLO, AMERICAN MORALIST, supra note 12, at 245-74.
242. See ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 92. I have not heard one argument for terms limitations for Members of Congress that is inspired by considering what has happened to politicians' schedules: something is to be said for requiring our more talented political men and women to retire from time to time to more leisurely activities. Whatever terms limitations there are should not be designed to keep Members from returning to Congress after they have had time to think properly about the problems of the Country.
We return to the problem of Presidential terms limitations by noticing what the eminently pious Roman Catholic churchman, John Henry Newman, confided to his diary:
It is not good for a pope to live twenty years. It is an anomaly and bears no good fruit; he becomes a god, has no one to contradict him, does not know facts, and does cruel things without meaning it.
KENNETH L. WOODWARD, MAKING SAINTS: HOW THE CATHOLIC CHURCH DETERMINES WHO BECOMES A SAINT, WHO DOESN'T, AND WHY 363 (1990). It may be prudent in our circumstances to continue to have, if we are to begin to know the candidates who offer themselves, long campaigning periods for the presidency.
243. Terms limitations are periodically suggested for judges, but these proposals often meet the resistance that proposals for court-packing and jurisdiction-stripping do, namely that they threaten the vital independence of judges.
244. It should be noticed that even if the convention mode of proposing amendments is resorted to by State legislatures to develop a terms-limitation amendment, Congress will still have considerable control over what happens in the preparation and promulgation of any proposed terms-limitations amendment. See Anastaplo, Constitution at Two Hundred, supra note 130, at 1053-60.
245. The original expectation of the Framers of the Constitution seems to have been that residents of the District would remain citizens of the States from which they came, in most cases only temporarily, to serve in the National Government. See, e.g., Dennis J. Mahoney, District of Columbia, in 2 ENCYLOPEDIA OF THE AMERICAN CONSTITUTION, supra note 4, at 569 ("The Framers of the Constitution apparently did not foresee a large permanent population in the distinct district from the population of the surrounding states.").
246. Republicans are most reluctant to have the District converted to a State because it is so heavily Democratic. This means, among other things, two more liberal Democrats in the Senate.
247. U.S. CONST. amend. XXV, §§ 3, 4. This is preceded, in § 1, by the designation as President, of any Vice President who permanently replaces a President who is removed from office, dies, or resigns. This designation formally confirmed what had been the practice ever since Vice President John Tyler succeeded William Henry Harrison in the Presidency in 1841.
248. The term Electoral College is not used in the Constitution of 1787. It is used in the Confederate Constitution of 1861. See CONFEDERATE CONST. of 1861, art. VII, § 2.
249. Greta Camille Guest, "Flipping Through The Fax," U.S. AIR MAG., Feb. 1991, at 20.
250. See ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 317 n.85.
251. The disturbing presumptuousness of Presidents was displayed most recently in how the Bush Administration (by United Nations Security Council resolutions, by the shipment of more and more troops to Saudi Arabia after the original emergency consignment, and by the issuance of one ultimatum after another) so manipulated matters, including American public opinion, as to make it very difficult for Congress to do anything in January 1991 but authorize an immediate use of massive force, on the scale of a major war, against a country of less than twenty million people. We see in this recent episode, a remarkable failure in imagination on our part, including moral imagination, however noble our intentions may have been. See ANASTAPLO, AMERICAN MORALIST, supra note 12, at xvi-xix, 225.
Is not the tendency of Presidential government toward plebiscitary democracy, the unreliability of which is suggested by what the contemporary deference to public opinion polls does to the exercise of prudence? The current Russian situation is instructive here. Consider, also, this warning from Machiavelli: "[I]f there be no enemy outside, [a republic] will find one at home, as it seems necessarily happens in all great cities." MACHIAVELLI, supra note 1, at II.20. War may suspend, but it does not eliminate, deep divisions at home. See also id., at II.25; WILLIAM SHAKESPEARE, THE SECOND PART OF KING HENRY THE FOURTH act 4, sc. 5.
252. For exchanges relating to these matters, see sources cited supra note 11.
253. It may not contribute to proper military morale to have involuntary recruits with diverse privileges keyed to age differences. May the Republican Form of Government Guarantee also bear on this, especially considering how critical the dedication to some form of equality is among us?
254. Edward B. Fiske, Minorities A Majority in New York, N.Y. TIMES, Mar. 22, 1991, at B1.
255. Much the same can be said about the balance-of-trade problems. Consider, for example, the difficulties that the Japanese face if they continue to supply us abundant tangible goods without opening their markets so as to permit us to compensate them with something other than promises. Until the Japanese do this, Japanese capitalists and workers will continue to subsidize the American standard of living. This eventually may lead to very high costs in Japan, making that country uncompetitive when it tries to sell goods abroad. In the meantime, however, Japanese stocks are a good investment for Americans.
256. I recall that when I first became aware of political things, the accepted wisdom of that day was that the South dominated Congress because it tended to keep its Members there much longer than Northern constituencies. Is the complaint today, then, that constituencies outside of the South have learned from Southern examples? Be that as it may, should long-term service in the bureaucracy be permitted after terms-limitations are imposed upon the legislators who are supposed to direct and supervise the bureaucrats?
257. Still, one does encounter more and more people who resent what they take to be the unseemly, intimidating aspects of such executive agencies as the Internal Revenue Service. I suspect that it would be good for the moral sense of the community if taxes were not collected in such a way as to provoke all too many intelligent taxpayers to be less candid in dealing with their governments than they are in financial dealings with others. The amount of money paid should not be the critical issue here.
258. War Powers Resolution of 1973, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. § 1544 (1988); see ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 113-15, 316 n.78.
259. CONTEMPORARY QUOTATIONS 266 (James B. Simpson ed., 1964).
260. What is the relation between an emphasis on love and a radical inwardness (or an emphasis upon the right of privacy)? What are the Christian influences here? See supra note 172. On how republicans put the erotic as well as family ties to public use, see ANASTAPLO, THE ARTIST AS THINKER, supra note 13, at 48-49, 51-56, 366 n.75, 391 n.79. Does capitalism, with its welcomed productivity, tend to encourage and legitimate self-centeredness and hedonistic self-love, if not simply selfishness? Institutionalized love for humanity (that is, organized charity) attempts to compensate for this tendency. It seems, in any event, that nature requires a community to have some public life. If the properly political is depreciated, then there may be an exposure to public view of much that should be private. It is prudent to notice that the erotic may be critical for philosophy. See supra Lecture No. 9, §§ II, XVI; see also supra notes 130-31. [Page 849]
APPENDIX A
LETTERS EXCHANGED BY THOMAS JEFFERSON AND JOHN ADAMS (1814)
[From Thomas Jefferson to John Adams]
430 Monticello July 5. 1814.
DEAR SIR
Since mine of Jan. 24. yours of Mar. 14 was recieved. It was not acknoleged in the short one [from me] of May 18. [delivered] by Mr. Rives, the only object of that having been to enable one of our most promising young men to have the advantage of making his bow to you. I learned with great regret the serious illness mentioned in your letter: and I hope Mr. Rives will be able to tell me you are entirely restored. But our machines have now been running for 70. or 80. years, and we must expect that, worn as they are, 431 here a pivot, there a wheel, now a pinion, next a spring, will be giving way: and however we may tinker them up for awhile, all will at length surcease motion. Our watches, with works of brass and steel, wear out within that period. Shall you and I last to see the course the seven-fold wonders of the times will take? The Attila of the age [Napoleon Bonaparte] dethroned, the ruthless destroyer of 10. millions of the human race, whose thirst for blood appeared unquenchable, the great oppressor of the rights and liberties of the world, shut up within the circle of a little island of the Mediterranean [Elba; he was later banished to St. Helena, in the South Atlantic], and dwindled to the condition of an humble and degraded pensioner on the bounty of those he had most injured. How miserably, how meanly, has he closed his inflated career! What a sample of the Bathos will his history present! He should have perished on the swords of his enemies, under the walls of Paris.
'Leon piagato a morte
Sente mancar la vita,
Guarda la sua ferita,
Ne s'avilisce ancor.Cosi fra l'ire estrema rugge, minaccia, e freme,
Che fa tremar morendo
Tal volta it cacciator.'Metast[asio,] Adriano [in Siria, II, 11]
['The lion stricken to death
realizes that he is dying,
and looks at his wounds from which
he grows ever weaker and weaker.[Then with his final wrath he roars,
threatens, and screams,
which makes the hunter
tremble at him dying.']But Bonaparte was a lion in the field only. In civil life a cold-blooded, calculating unprincipled Usurper, without a virtue, no statesman, knowing nothing of commerce, political economy, or civil government, and supplying ignorance by bold presumption. I had supposed him a great man until his entrance into the Assembly des cinq cens, 18. Brumaire (an 8.) [Nov. 9, 1799]. From that date however I set him down as a great scoundrel only. To the wonders of his rise and fall, we may add that of a Czar of Muscovy [Alexander I] dictating, in Paris [in 1814], laws and limits to all the successors of the Caesars, and holding even the balance in which the fortunes of this new world are suspended. I own that, while I rejoice, for the good of mankind, in the deliverance of Europe from the havoc which would have never ceased while Bonaparte should have lived in power, I see with anxiety the tyrant of the ocean [England] remaining in vigor, and even participating in the merit 432 of crushing his brother tyrant. While the world is thus turned up side down, on which side of it are we? All the strong reasons indeed place [Page 850] us on the side of peace; the interests of the continent, their friendly dispositions, and even the interests of England. Her passions alone are opposed to it. Peace would seem now to be an easy work, the causes of the war being removed. Her orders of council will no doubt be taken care of by the allied powers, and, war ceasing, her impressment of our seamen ceases of course. But I fear there is a foundation for the design intimated in the public papers, of demanding a cession of our right in the fisheries [off the northern coast of North America]. What will Massachusetts say to this? I mean her majority, which must be considered as speaking, thro' the organs it has appointed itself, as the Index of it's will. She chose to sacrifice the liberty of our seafaring citizens, in which we were all interested, and with them her obligations to the Co-states; rather than war with England. Will she now sacrifice the fisheries to the same partialities? This question is interesting to her alone: for to the middle, the Southern and Western States they are of no direct concern; of no more than the culture of tobacco, rice and cotton to Massachusetts. I am really at a loss to conjecture what our refractory sister will say on this occasion. I know what, as a citizen of the Union, I would say to her. 'Take this question ad referendum. It concerns you alone. If you would rather give up the fisheries than war with England, we give them up. If you had rather fight for them, we will defend your interests to the last drop of our blood, chusing rather to set a good example than follow a bad one.' And I hope she will determine to fight for them. With this however you and I shall have nothing to do; ours being truly the case wherein 'non tali auxilio, nec defensoribus istis Tempus eget.' ['We do not, at this time, want such aid as that, nor such defenders.' Virgil, Aeneid, II, 521.] Quitting this subject therefore I will turn over another leaf.
I am just returned from one of my long absences, having been at my other home for five weeks past. Having more leisure there than here for reading, I amused myself with reading seriously Plato's republic. I am wrong however in calling it amusement, for it was the heaviest task-work I ever went through. I had occasionally before taken up some of his other works, but scarcely ever had patience to go through a whole dialogue. While wading thro' the whimsies, the puerilities, and unintelligible jargon of this work, I laid it down often to ask myself how it could have been that the world should have so long consented to give reputation to such nonsense as this? How the soi- disant Christian world indeed should have [433] done it, is a piece of historical curiosity. But how could the Roman good sense do it? And particularly how could Cicero bestow such eulogies on Plato? Altho' Cicero did not wield the dense logic of Demosthenes, yet he was able, learned, laborious, practiced in the business of the world, and honest. He could not be the dupe of mere style, of which he was himself the first master in the world. With the Moderns, I think, it is rather a matter of fashion and authority. Education is chiefly in the hands of persons who, from their profession, have an interest in the reputation and the dreams of Plato. They give the tone while at school, and few, in their after-years, have occasion to revise their college opinions. But fashion and authority apart, and bringing Plato to the test of reason, take from him his sophisms, futilities, and incomprehensibilities, and what remains? In truth, he is one of the race of genuine Sophists, who has escaped the oblivion of his brethren, first by the elegance of his diction, but chiefly by the adoption and incorporation of his whimsies into the body of artificial Christianity. His foggy mind, is forever presenting the semblances of objects which, half seen thro' a mist, can be defined neither in form or dimension. Yet this which should have consigned him to early oblivion really procured him immortality of fame and reverence. The Christian priesthood, finding the doctrines of Christ leveled to every understanding, and too plain to need explanation, saw, in the mysticisms of Plato, materials with which they might build up an artificial system which might, from it's indistinctness, admit everlasting controversy, give employment for their order, and introduce it to profit, power and pre-eminence. The doctrines which flowed from the lips of Jesus himself are within the comprehension of a child; but thousands of volumes have not yet explained the Platonisms engrafted on them: and for this obvious reason that nonsense can never be explained. Their purposes however are answered. Plato is canonized; and it is now deemed as impious to question his merits as those of an Apostle of Jesus. He is peculiarly appealed [Page 851] to as an advocate of the immortality of the soul; and yet I will venture to say that were there no better arguments than his in proof of it, not a man in the world would believe it. It is fortunate for us that Platonic republicanism has not obtained the same favor as Platonic Christianity; or we should now have been all living, men, women and children, pell mell together, like beasts of the field or forest. Yet 'Plato is a great Philosopher,' said La Fontaine. But says Fontenelle 'do you find his ideas very clear?' 'Oh no! he is of an obscurity impenetrable.' 'Do you not find him full of contradictions?' 'Certainly,' replied La Fontaine, "he is but a Sophist." Yet immediately after, he exclaims again, 'Oh Plato was a great Philosopher.' Socrates had reason indeed to complain of the misrepresentations of Plato; for in truth his dialogues are libels on Socrates.
[434] But why am I dosing you with these Ante-diluvian topics? Because I am glad to have some one to whom they are familiar, and who will not receive them as if dropped from the moon. Our post-revolutionary youth are born under happier stars than you and I were. They acquire all learning in their mothers' womb, and bring it into the world ready-made. The information of books is no longer necessary; and all knolege which is not innate, is in contempt, or neglect at least. Every folly must run it's round; and so, I suppose, must that of self-learning, and self sufficiency; of rejecting the knolege acquired in past ages, and starting on the new ground of intuition. When sobered by experience I hope our successors will turn their attention to the advantages of education. I mean of education on the broad scale, and not that of the petty academies, as they call themselves, which are starting up in every neighborhood, and where one or two men, possessing Latin, and sometimes Greek, a knolege of the globes, and the first six books of Euclid, imagine and communicate this as the sum of science. They commit their pupils to the theatre of the world with just taste enough of learning to be al