Friday, June 29, 2018

Of Bakers and Bans

In the last couple of weeks there have been several decisions handed down by the Supreme Court that have captured the attention of the American public more than most cases.  And with that attention has come a lot of angst, misunderstanding and misleading information about the decisions.  I'd like to take a little time and look at two of them and explain the Constitutional aspects of each one while taking the political spin out of them.  We'll explore what the cases were actually about, at their most basic level, and just as importantly, what they were not about.

The first case is the Masterpiece Cake case (Masterpice Cakeshop v Colorado Civil Rights Commission).  For those of you who need a refresher, Colorado baker Jack Phillips was sued by the Colorado Civil Rights Commission for refusing to bake a custom wedding cake for a same-sex wedding.  He said that by creating a custom work of art, he is an active participant in an action that conflicts with his religious beliefs.  He, in fact, offered the couple anything in the shop that was already made and non-specific to a same-sex wedding, but refused the custom work.  The Colorado Civil Rights Commission, in response to the couple's complaint, sued Phillips for violating the state's non-discrimination law.  Phillips lost and, to make a long story short (this is a blog, after all, not an academic paper), appealed all the way to the Supreme Court.

The justices found, in a frankly surprisingly strong 7-2 decision, that the CCRC did the actual violating of civil rights as pertains to Phillips and his religious beliefs.  The Court cited numerous instances of the Commission being openly hostile to religion and a history of inconsistent application of the Colorado law.

So, aside from the State of Colorado essentially singling out Phillips for prosecution, what other factors and Constitutional issues were at play here?  At the heart of the matter is the concept of compelled speech.  As explained to me, compelled speech is for of censorship, but the inverse of how we usually think of it.  We usually associate censorship with a government action telling us that we must not say something.  Compelled speech, on the other hand, is the government saying we must do or say something, which is frankly much more pernicious.  The other base issue at hand is the separation of status from behavior.  Let's take these one at a time.

In the case of compelled speech, the government is telling you that you must do or say something, even if it conflicts with your most deeply-held beliefs.  In this case, Phillips has a deep conviction that marriage is between a man and a woman (one each), and anything else is a violation of God's plan for humankind.  Now, you may disagree with that position, but you can't say that his belief - and his faith - is not sincere.  Nor can the government.  Phillips had a record of refusing work based on his beliefs, including refusing to make Halloween confections or divorce party cakes, so he was able to demonstrate a consistent history of this kind of belief (even though it should not have been necessary to do so, in a perfect Constitutional world).  He was also able to demonstrate a history of serving anyone who came into his shop with anything on the shelves.  He never discriminated against anyone based on who they were - which brings us to the next point.

If Phillips had told the couple he doesn't serve gay people (or black people or Muslims or whoever), he would've - quite properly - lost in a landslide, because he would have discriminated on that basis of status.  In other words, he refuses someone based simply on who they are.  None of us likes that, do we?  But his refusal was based on a specific behavior - in this case, a same-sex wedding - that was in serious conflict with his religious beliefs.  Remember, he offered the couple anything else in the store, just not a piece of custom artistic work with his name in it, so to speak, that would imply an endorsement of the behavior he found wrong.  Now, people can argue that there should be nothing wrong with a same-sex wedding, and indeed, same-sex weddings are legally permitted in all states, but that isn't really the point.  The point, ultimately, is: do you want the government deciding which of your sincerely held beliefs is kosher (religious belief joke there...) and which is not?  You see the danger.

But what about same-sex marriage?  Hasn't the Court legitimized bigotry and homophobia and random discrimination, as so many headlines claimed?  No, not in the least.  Not a single statute or Supreme Court precedent was invalidated or even in any way modified by this decision, not even the Colorado law in question.  The point was that the Colorado commission mis-applied their own law, not that the law was somehow bad. 

So, bottom line from this case: First of all, it was not about gay marriage (interestingly, soon-to-retire Justice Kennedy authored the opinion both in this case and in the Obergefell case, which essentially legalized same-sex marriage, so clearly Kennedy was not about to overrule himself!).  That was only a tangential issue.  Second: understand the difference between status and behavior.  And third, understand the legal concept of compelled speech and the problem it creates in a free society, which includes the freedom to have differing opinions without being prosecuted.

The second case is the recent decision regarding the Trump Administration's ban on travelers from certain countries (Trump v Hawaii).  Popularly known as the "Muslim Travel Ban", the case was decided not on the basis of religion or religious discrimination.  So, what was the fundamental issue?

The Court's majority ruled narrowly in favor of the Administration, but not on the basis of the policy being good or wise.  The issue was this: does the President have the Constitutional and statutory authority to ban, well, basically anyone from entering the country?  The Court says, yes, the President does.  And that was basically it.  The Court's majority made no comment on the wisdom or appropriateness of the ban, because that is a political question, not a judicial one, and the Court is hesitant to make political commentary, leaving that to the political branches of government.  So, despite the headlines saying that the "Muslim ban" was upheld, and despite Trump's own tweets about the Trump travel ban being upheld, it really wasn't about upholding the ban or not, but simply whether or not he president may do such a thing, regardless of whether or not it's a good idea. 

As a matter of fact, and the Court's majority acknowledges this, it really wasn't a "Muslim ban", anyway, even though most of the countries covered in it (though not all) are Muslim-majority countries.  The travel ban covered only just over ten percent of the world's Muslim population, despite President Trump's rhetoric from a year or two ago about Muslims.  This rhetoric was what the dissenters in the case used to vote against the Administration, but that's not really the Constitutional crux of the issue.  That's a political issue, which again, the Court tends to try not to involve itself in.  The reason for the ban (and I have an interest in this, being in the airline business), is that the countries in question don't practice an acceptable level of ID verification for passengers, thereby creating an unacceptable security issue for US aviation security standards.  Notably, since the first version of the ban, which was successfully challenged, a couple countries have improved their processes and have been removed from the list, but now we're getting further from the Constitutional issue, so I'll stop there.

So, the overall point of this entry is to encourage people to carefully read and evaluate exactly what the Supreme Court is saying when it rules on an issue, and just as importantly, what it is not ruling on.  In this age of instant analysis by all manner of social media-based, self-proclaimed experts and the 24-hour TV news cycle, it's too easy to be swayed by breathless headlines (no matter which side of the issue you may be on).  Take the time to understand the reasoning before you leap to conclusions.  Not to say the Supreme Court is infallible.  Not by a long shot.  We all remember notoriously bad decisions, like Plessey v Ferguson, Dred Scott, Korematsu, Kelo and others.  And certainly, there have been plenty of decisions in the past in which I really didn't like the outcome, but had to admit, upon sober reflection, that the decision, in terms of the Constitution, was correct.  And really, that's all I ask.

Thanks for reading.  Discuss...

Thursday, June 28, 2018

The Most Powerful Man In America

Yesterday (June 27, 2018), the most powerful man in the country announced his retirement.  No, it wasn’t the President, nor was it the Speaker of the House, the Chairman of the Joint Chiefs or even the Commissioner of Baseball.  No, it was Associate Justice of the Supreme Court, Anthony Kennedy.

So, am I being a little facetious saying he’s the most powerful man in the country?  No, I don’t think so, and here’s why:

The Supreme Court of the United States (SCOTUS) is populated with nine justices.  Four are generally identified as liberals or progressives or activists or some other term indicating a left-leaning mindset.  These are Justices Kagan, Ginsburg, Sotomayor and Breyer.  Four others are generally thought of as conservatives, originalists, textualists or other right-leaning terms.  These would be Chief Justice Roberts, Thomas, Alito and Gorsuch.  This leaves Kennedy kind of in the middle.

For three decades, and even more so after the retirement of Justice O'Connor, Justice Kennedy has been seen by most as the “swing vote” – the one who chooses a side in those 5-4 decisions to make a majority one way or the other.  And that’s what makes him the most powerful man in the nation.  No one else has the influence he does on our nation’s laws and jurisprudence.  Pundits are already arguing about whether Kennedy has such an ego that he put himself in this position precisely because he wanted this kind of power, and I’ll leave the pundits to shout each other down over that.  Have at it.

But what is not debatable is the fact that Kennedy has been powerfully consequential.  Let’s look at just a few of the 5-4 decisions in which he was essentially the tiebreaker:

Decisions “The Left” would generally cheer:

Obergefell v Hodges, which essentially legalized same-sex marriage in the U.S.

Planned Parenthood v Casey, reaffirming Roe v Wade and the legality of abortion (with some restrictions)

Kennedy (not Justice Kennedy) v Louisiana and Hall v Florida, placing restrictions of capital punishment

Decisions “The Right” would generally cheer:

Citizens United v FEC, ruling that campaign spending is protected as free speech under the First Amendment

DC v Heller, affirming the right to keep and bear arms and an individual right

Bush v Gore, putting an end to the 2000 presidential election recounts

And much more.

So, what comes next?  Obviously, President Trump is going to nominate a replacement.  The interesting political situation is going to be this: if one of the “conservative” justices needed to be replaced, like the late Justice Scalia, nominating and confirming a justice like Gorsuch keeps the court’s “ideological” (I hate using that term, actually, as there should be no ideology involved, but that’s a separate blog for some other time) balance more or less at the status quo ante.  Likewise, when President Obama replaced Justices Souter and Stevens with Justices Sotomayor and Kagan, respectively, there was no discernible ideological shift on the bench.  But with a centrist, for lack of a better term, like Kennedy, how does the president proceed, and is there any way to please either of the parties in the Senate with any one candidate?  This is likely going to be the most contentious SCOTUS nomination and confirmation process of a generation, if not longer.

Now, should one person, especially an unelected person who serves essentially for life, have the kind of influence and power Justice Kennedy has wielded?  Again, sounds like a good topic for another blog entry, and will be an issue we'll hear raised over and over again in the upcoming months.
Justice Kennedy, by design or by chance, has made things really interesting for us.

Buckle up…

Wednesday, May 31, 2017

Madison Memorial - Or Not?

Excavation and restoration of slave quarters at
James Madison's estate, Montpelier
Recently, a student at James Madison Memorial High School in Madison, Wisconsin (how's that for a lot of Madison references?!) started a petition to remove Madison's name from the school because Madison was a slave owner, and slave owners should not be honored in such a way.  You can read and see the original story here.

As a big fan of James Madison, you can imagine I'm less than supportive of this effort, to say the least (I wish the students would learn more about Madison instead of trying to banish him), but in keeping with the intent of this blog, let's look carefully and fairly (as fairly as I can when someone is trying to get rid of James Madison!) at both sides of the issue.

First of all, let's stipulate something right up front.  Slavery is bad.  So bad that "bad" doesn't even begin to cover it.  I'd classify slavery along with rape and murder as the Unholy Trinity of bad things one human can do to another.  So, there will be no defending slavery as such in any arguments here.  There are those who argue that Madison was a "good master", and as far as that goes, he was - he was remembered by some of his former slaves as never striking a slave and reprimanding those who did.  Madison was remembered with great respect by his former slave and valet Paul Jennings in Jennings' book "A Colored Man's Reminiscences of James Madison" - the first White House "memoir" ever published.  But the "good master" and "happy slave" arguments are little more than excuse-making for the very institution of slavery, so we won't go down that road in Madison's defense.

Let's begin with the affirmative side, seeking to change the name of Madison Memorial to something else (whatever the something else is hasn't been discussed yet, so we'll not worry about what other name may be proposed for the school).  The student and supporters of the petition say that anyone who owned slaves should not be honored with a building in their name.  I'd say that, on the surface, makes some sense - why honor those who have owned another human being?  The student also relates that she's been called racial epithets and even been threatened with lynching at the school, and changing the name would help discourage that behavior.  To be honest, I can't see how the mere name of the school leads to those things, but let's give her the benefit of the doubt on that, as well.  The mere fact that their school is named after a slaveholder adds to the sense of racial injustice in her eyes and the eyes of others.

Clearly, most people have never been the target of racial bigotry or threats (I say "most of us" because America is still majority white), so we (white people) would have a more difficult time understanding the ramifications of such behavior than those who've been subject to it.  With all that in mind, let us acknowledge that racial issues are by no means a thing of the past, and something we have to deal with continuously (sadly).  And given that, let us also give the students in question the benefit of the doubt that the name of their school might in some small way be a factor in it.

Shifting to the negative side of the argument, let's point out a few flaws in the Affirmative's reasoning.  One flaw is the common mistake of "presentism" - that is, applying our modern (and presumably, more enlightened) thinking to an older issue.  We understand that slavery is wrong, and frankly, so did they, way back then, though they did little to stop it.  On the other hand, slavery has been a part of human history since Biblical times, at least, so it doesn't exactly make the Founders like Madison (and Jefferson and Washington, as well) especially unique.  For all their high-minded rhetoric (Jefferson's especially), they themselves didn't free any slaves, but they did do something in order to allow it to happen over time.  And that leads us to the next flaw in the Affirmative argument, which is a lack of context.

In 1787, there was a convention called in Philadelphia in order to amend the Articles of Confederation, the contract that loosely bound the colonies together.  The Articles were not working, and the country was not really a country, but a confederation of thirteen sovereign states with little central authority binding them together.  Madison arrived early, and to make a long story short, changed the direction of the convention from amending the Articles to drawing up an entirely new Constitution, effectively creating the United States of America, with a stronger central government, but with much power still reserved to the states.  The Constitution was a series of compromises (too many to list here and stay on topic), and one compromise was that they effectively punted on the question of slavery in order to get all the states to accept the new Constitution.  So why, with this in mind, am I still defending Madison as regards the slavery issue?

If the Articles of Confederation had stayed in effect, it's likely a nationwide ban on slavery would never have come about.  Each state may have, in turn, banned slavery, but it would not have been a national policy - a supreme law of the land.  By authoring the Constitution, and in particular, the amendment process of Article V, it cleared the way for the eventual passage of the Thirteenth Amendment and the nationwide banning of slavery, something unlikely to happen without a national document of fundamental and supreme law.

So, while Madison did not personally free any slaves, he set up a system by which it could be done on a national scale.  He was the original and ultimate political operator in the United States - he knew how to lobby people and convince them and compromise with them and get things done.  The Three-Fifths Compromise (speaking of slavery) was one such effort.  In the debate over representation in Congress, southern slave-holding states wanted to count slaves as part of the population in order to get more Congressional seats, while the northern free states opposed the idea.  Madison brokered a compromise, which allowed the southern states to count three-fifths of their slave population toward their representation total.  In contrast to what many people believe, it was not a compromise that had the southern states looking to further marginalize slaves as less than a full person - they wanted all the slaves counted (though of course the extra representation in Congress was not going to be filled by slaves - or free blacks, for that matter).  In the long run, the Three-Fifths Compromise was actually better for the slaves by keeping the southern states from being disproportionately powerful compared to the free states.  As I said earlier - context.

Madison and the other Founders also, while owning slaves themselves, did not argue strenuously that slavery was a "positive good", as did former US Representative, Senator and VP John Calhoun (whose name was recently removed from Yale University, the school named after him being renamed for Admiral Grace Hopper).

To sum up, I understand the idea of not wanting to honor slave owners, but on the other hand, we need to look at the entirety of someone's life's work, not just focus on one (admittedly large) flaw.  In consulting my own rather extensive library of books by and about Madison, there's a lot more there than simply "he owned slaves".  But is that enough to take his name off the building?  Or off the name of Wisconsin's capitol city?  Where does it end?  Do we rename Washington, DC?  Jefferson City, Missouri?  Universities named after George Washington, George Mason, James Madison and Robert Morris?

Sadly, while the Thirteenth Amendment ended slavery, it did not end racial tensions in America.  Now discuss - is this (renaming a school) a way to lessen the tension or does it endanger our understanding of history?

Monday, January 23, 2017

The People Have Spoken?

“The people have spoken…the bastards.” – Dick Tuck, failed political candidate.

The presidential election of 2016 has, as is normally the case, it seems, resurrected the quadrennial debate over the American Electoral system (I have decided not use the term “Electoral College” because it is not historically accurate – nothing in the Constitution refers to such a body.  It’s merely a term of convenience – probably first used to draw an analogy to the Roman Catholic College of Cardinals,  which elects popes.).  For the second time in sixteen years, the winner of the popular vote for president did not earn the requisite number of electoral votes in order to be victorious.

People often wonder why our system of choosing a president is so cumbersome and seemingly undemocratic.  For a brief history on this unique institution, see my previous entry here.  People wonder if there is a better way of electing the president, and suggestions ranging from a direct election consisting of the nationwide popular vote to various modifications of the current electoral system (perhaps most notably encouraging states to split their electoral votes in a proportional manner similar to Nebraska or Maine, eliminating the winner-take-all sweepstakes as in all the other states) are regularly floated around election time.

I recently listened to one of my favorite podcasts, Your Weekly Constitutional, and the topic was this very thing - specifically, the National Popular Vote Initiative.  You can listen to this episode here.
In a nutshell, this movement is trying to establish a voluntary compact between states in which the states involved agree to cast their electoral votes for the candidate who wins the national popular vote, not necessarily who wins the most votes in their own state.  This compact would go into effect only when a sufficient number of states join so that their electoral vote totals would add up to at least 270, thereby ensuring that the national popular vote winner would also win the electoral vote.
As you can imagine, there are several pros and cons to a proposal like this.  Let me list a few on each side and encourage you, the reader, to weigh them and draw your own conclusions.


It would be more “democratic”.  The person who wins the most votes nationwide wins the election in all cases.

It eliminates the idea of “swing states”.  In the last election, both candidates concentrated their efforts in about a dozen states that were considered “in play”, while basically ignoring states they either knew they had locked up or had no chance of winning.  For example, Trump could basically skip campaigning in New York or California, knowing he had no chance there, and Clinton could all but ignore Texas or Tennessee for the same reason (and conversely, there was no practical reason for Trump to go to TX or TN or for Clinton to campaign in NY or CA).  So, most of the efforts of both candidates were focused on a relatively small number of states they knew they had to win in order to get to the magic number of 270 electoral votes.

It would not require a Constitutional amendment.  Each state is free to establish its own criteria for casting its electoral votes.  There is no Constitutionally-mandated method.  As mentioned above, Maine and Nebraska use a proportional system, not winner-take-all, and it’s perfectly legitimate of them to do so.

It would be voluntary.  Each state in the compact would have to agree to it.  No other entity, state or federal, can coerce a state to join (and presumably, each state would turn to its own citizens in some type of referendum in order to approve the plan).


It seems to be a solution in search of a problem.  We’ve had 58 presidential elections in our history and only five times has the popular winner not won the electoral vote.  That’s less than ten percent of the time – an outlying rarity in the big picture of things.

It would diminish the influence of less-populated states.  The Founders were very concerned about states and their place in the nation as a whole.  That’s why we have a bicameral Congress in which one chamber represents the people and one represents the states (remember, Senators were originally elected by state legislatures, not by popular vote).  States like Alaska and Wyoming, which wield a somewhat outsized electoral influence relative to their populations would see their “importance” in presidential elections diminish if all that mattered was the national popular vote.

Voters in certain states might feel disenfranchised if their electoral votes went opposite their state vote.  For example, in my home state of Wisconsin, the statewide vote went for Trump, but if Wisconsin were part of this compact, our electoral votes would have gone for Clinton, opposite the apparent will of the Wisconsin voters at large.

The states with the largest populations would have too much influence.  Again, going back to the recent election, Clinton’s popular vote margin was somewhere in the neighborhood of 2.5 million nationwide.  That also happens nearly identical to the margin of victory she enjoyed in California alone.  Do the rest of the states want one state to be the deciding factor?

Certainly, you readers can come up with other arguments for and against this idea, which, I should note, enjoys a fairly remarkable level of bipartisan support in certain areas, so it’s not just a “Democrats lost and so they want to change things” kind of scenario unique to this year.

Will this change happen?  Time will tell, of course.  Perhaps it will.  Perhaps another type of “reform” movement will gain momentum.  And perhaps the system we have will stay intact.  What say you? 


Tuesday, July 5, 2016

Watch Your Language!

Congress shall make no law...

Sound familiar?  Of course, it does - it's the first few words of the First Amendment.  

How about these:

The SAFE Act
"I Like Ike"
"Tippecanoe and Tyler, Too"

What do all these have in common?  The use of language.  In politics, language can be used as much as a means of salesmanship as statesmanship.  Let's be honest - politicians are careful in their choice of words (okay, most of the time) in order to get you to come to a conclusion that favors the politician ("Vote for me!"  "Support this bill!").  And it can be very clever.  Let's take, for instance, the above USA PATRIOT Act.  Do you know what it stands for?  I mean, we all want to be patriotic, right?

USA PATRIOT Act:  Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act.  Quite a mouthful, isn't it?  I mean, who's going to bother reading about something with that long and cumbersome a title, right?  So, let's make it something catchy and at the same time make it sound like anyone who opposes it isn't a patriot.  Clever, huh?  Without debating the merits of the law, it's clever marketing, isn't it? 

Likewise, the SAFE Act.  We all like safety, right?  How about the Security and Freedom Enhancement Act?  I mean, still sounds good, right?  It's actually another law that provides for the amending of the USA PATRIOT Act.  Again, clever marketing.

Campaign slogans are also noted for clever, pithy phrases.  Has any campaign had a better, simpler slogan than "I Like Ike"?  (Okay, "Jeb!" from this year's GOP primary was simpler, but not especially effective, we must admit.)  "Tippecanoe and Tyler, Too" from 1840 had a catchy blend of rhyme and alliteration.  Clever, no?.  Both of the above slogans proved effective, too - William Henry Harrison ("Tippecanoe") won handily in 1840 and Dwight D. Eisenhower ("Ike") won a landslide in 1952.

But what does this have to do with the way I started this entry - "Congress shall make no law"?  I want to point out the power of language and the necessity in being precise when we use language about the Constitution, not clever political marketing ploys.

I referred to this concept way back when we started talking about the Amendments to the Constitution.  I asked this question: "Does the Constitution (and therefore, the federal governments) grant rights, or is its function to protect them?  There is a critical difference between the two ideas."

I think (I hope) we all can agree that the Bill of Rights, grants absolutely nothing.  Nope, not a thing. No rights were created by the Bill of Rights (sounds counter-intuitive, I know).   But look carefully at the language:  

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

Note that the amendment restricts the government from making laws that infringe upon the rights listed.  The amendment does not purport to grant or create those rights - they are assumed to already exist and the amendment merely erects a legal barrier against government interference in the exercise of those already-existing rights.  Look at some of the following amendments and you will see a similar construction:

"...the right of the people to keep and bear Arms, shall not be infringed."

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..."

"...the right of trial by jury shall be preserved."

You get the point.  The rights listed above, among others, are assumed to be inherent, not artificially created by a mere political document.  

So, what? you ask.  So, I encourage you to use language properly when talking about the Constitution.  Personally, I have decided to avoid using the term "Constitutional Rights", since there are in fact no rights created by the Constitution.  Instead, I use "Constitutionally-protected rights".  Yes, I know it's cumbersome, and people will know what I mean if I use the first, common construction.  Still, I make the case that it's critical to the deeper understanding of the Constitution - and how it actually is written and intended to be understood - to use precise language whenever possible.  It can, at the very least, spark some interesting discussions.  So, go and discuss.

Friday, April 22, 2016

Wrapping it up with a drink and some cash - Amendments 18, 21 and 27

Amendment 18

It's commonly assumed that a general feeling of alcohol being the root of many societal ills was the driving force behind the 18th Amendment, known better as Prohibition.  The rest of the story is much more interesting and intricate.

But first, the text:

1. After one year from the ratification of this article the manufacture, sale, or
transportation of intoxicating liquors within, the importation thereof into, or the
exportation thereof from the United States and all territory subject to the jurisdiction
thereof for beverage purposes is hereby prohibited.
2. The Congress and the several States shall have concurrent power to enforce this article
by appropriate legislation.
3. This article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by the legislatures of the several States, as provided in the Constitution,
within seven years from the date of the submission hereof to the States by the Congress.

That's is - no more Happy Hour, no more champagne toasts at weddings, no more cold beer after mowing the lawn.  What a nightmare!  But how did it happen?

Rather than trying to summarize, let me offer a link to an absolutely fascinating article about the genesis of Prohibition and the man who was the main motivator for it - a man you almost certainly never heard of - Wayne Wheeler.

Naturally, there was widespread controversy, widespread protest and let's face it, widespread ignoring of the law.  But from January 16, 1919 until December 5, 1933, it was the law of the land, which left us with a legacy of lawbreakers like the bootleggers and crime bosses like Al Capone.  The law was a failure, so it was finally repealed by...

Amendment 21

Section 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Section 1 of the amendment repealed the 18th, getting rid of the federal ban on alcoholic beverages.  Pretty simple.  But...
Section 2 essential made liquor laws state issues.  States were free to allow or disallow alcohol according to its own laws, and several states indeed remained "dry", the last one to re-allow alcohol was Mississippi, in 1966.  Other laws stayed on the books longer, for example, Kansas prohibited public bars until 1987.
However, federal influence over alcohol sales did not end entirely.  As recently as 1987, the State of South Dakota sued the federal government (and lost) over the loss of federal highway funds due to the state's allowing of the sale of certain low-alcohol-content drinks ("near beer") to people under 21.

And now, the final entry in our exploration of the Amendments to the Constitution:

Amendment 27
This is one of the shortest amendments, word count-wise, but has the distinction of taking the longest of all the amendments to finally be ratified.  
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
In effect, it means that Congress cannot just vote itself a raise just any old time it wants to.  If a raise is approved by Congress, the increase does not take effect until after the next election, ensuring that the voters have a chance to vote out anyone they feel was a little too greedy in their increase.  This has the effect of tempering the amount of a raise Congress is willing to give itself.  Too big a raise, and they risk being voted out of office.
But the really interesting part of this amendment is that it took a mere 202 years to be ratified.  You read that right: over two centuries passed from the time it was brought before Congress until the last requisite state ratified it.  The amendment was actually number two in an original twelve proposed by the first Congress.  The first on that list, dealing with numbers of representatives, was never ratified, and original amendments 3-12 became what we know as The Bill of Rights (so the amendment we know as the First Amendment started out as the third, and so on).
The first state to ratify the eventual 27th Amendment (and remember, it was the original second amendment!) was Maryland in 1789.  Six more states added their approval by 1792, but after that, no other state voted to ratify for another 80 years, when Ohio voted in favor in 1873.  And then, it was another century before Wyoming approved in 1978.  Twenty-two more states ratified in the 1980s and finally, in 1992, Michigan put it over the top.  And to think, all that time, COngress could just raise its salary whenever it wanted....  Good work if you can get it, right?

Well, that's it for the amendments.  What shall we talk about next?

Wednesday, April 20, 2016

The Office-Holding Amendments: 17, 20, 22, 23, 25

Amendment 17

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect that the election or term of any Senator chosen before it becomes valid as part of the Constitution.
The major change made by this amendment is that the election of Senators was transferred from the state legislatures to the people directly.  The original intent of electing senators in the state houses was to ensure that the Senate represented the interests of the states, whereas the House was elected directly by the people, and therefore, in theory, was representing the interests of the general population.  It was a plan by which the Framers thought the interests of the states and the people would be properly balanced.  The Senate was designed to be a slower-moving, more deliberate body, as opposed to the more frequent changes of representation in the House.  So, why the change?
The Populist movement of the late 19th century and the "reformers" elected in the early 20th century argued that the Senate needed to be more responsive to the people and not become an aristocratic dinosaur of an institution.  Opponents of the proposed change worried that the Senate would be too susceptible to the whims of the people (as they saw the House) and chaos would follow.  In the end, the Reformers won (though notably, they added the last paragraph, exempting those already in office from having to be re-elected by popular vote).  On the other hand, the opponents of the plan gained a little victory by including a provision that allowed state governments to appoint temporary replacements to the Senate in case of sudden vacancies.
Interestingly, not all states ratified this amendment.  When 36 states did so in 1913, it came into effect, but five states voted to ratify after the fact (the latest being Rhode Island, which ratified in 2014 - over 100 years later!).  One state - Utah - outright rejected it, and eight states have never taken action on it.
Amendment 20
 This one provides for a set timetable for both the president and the Congress to take office, and what happens in case the president-elect dies prior to taking office.  Not a whole lot to discuss here, just mainly government adminis-trivia, to be honest.  Ratified January 23, 1933.

1. The terms of the President and Vice President shall end at noon on the 20th day of
January, and the terms of Senators and Representatives at noon on the 3d day of January,
of the years in which such terms would have ended if this article had not been ratified;
and the terms of their successors shall then begin.
2. The Congress shall assemble at least once in every year, and such meeting shall begin
at noon on the 3d day of January, unless they shall by law appoint a different day.
3. If, at the time fixed for the beginning of the term of the President, the President elect
shall have died, the Vice President elect shall become President. If a President shall not
have been chosen before the time fixed for the beginning of his term, or if the President
elect shall have failed to qualify, then the Vice President elect shall act as President until
a President shall have qualified; and the Congress may by law provide for the case
wherein neither a President elect nor a Vice President elect shall have qualified, declaring
who shall then act as President, or the manner in which one who is to act shall be
selected, and such person shall act accordingly until a President or Vice President shall
have qualified.
4. The Congress may by law provide for the case of the death of any of the persons from
whom the House of Representatives may choose a President whenever the right of choice
shall have devolved upon them, and for the case of the death of any of the persons from
whom the Senate may choose a Vice President whenever the right of choice shall have
devolved upon them.
5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification
of this article.
6. This article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by the legislatures of three-fourths of the several States within seven
years from the date of its submission.

Amendment 22

1. No person shall be elected to the office of the President more than twice, and no person
who has held the office of President, or acted as President, for more than two years of a
term to which some other person was elected President shall be elected to the office of
the President more than once. But this Article shall not apply to any person holding the
office of President, when this Article was proposed by the Congress, and shall not
prevent any person who may be holding the office of President, or acting as President,
during the term within which this Article becomes operative from holding the office of
President or acting as President during the remainder of such term.
2. This article shall be inoperative unless it shall have been ratified as an amendment to
the Constitution by the legislatures of three-fourths of the several States within seven

years from the date of its submission to the States by the Congress.

After having elected Franklin Roosevelt to the presidency four times, Americans came to the general agreement that four terms in office (of which FDR served just over three, due to his death in 1945) was too much.  Washington had set an unofficial precedent by refusing to run for a third term (though due primarily to health reasons), and the practice was followed by Jefferson, Madison, Monroe and Jackson.  Several men did, in fact try to be elected a third time (Grant, Cleveland, Theodore Roosevelt and Wilson), but none was successful.  When FDR came up for a potential third term in 1940, he declared he would only do so if "drafted" by the convention - only of delegates would vote for him without him actively campaigning in the primary.  He won the nomination in a landslide (946 votes for him, 133 for the other two contenders combined).  He ran again in 1944, was elected and died just over a month after taking his fourth oath of office.  He remains the only president to be elected more than twice and the only to serve more than eight years.

The 22nd Amendment ensures that no president will ever be elected more than twice, but a president could still serve more than eight years.  How?  First, Harry Truman could have been elected more that twice, as he was exempted from this amendment by virtue of being president when it was ratified.  Second, anyone serving less than two years of a predecessor's term can be elected twice on his or her own merit.  Lyndon Johnson, for example, could have run again in 1968 and served four more years in addition to the five he had already served (he only "used" about one year of Kennedy's term, after JFK'a assassination).   On the other hand, Ford, if he'd been elected in 1976, could not have run again in 1980 because he served more than two years of Nixon's term from the 1972 election.

There have been several attempts to repeal this amendment, but none have made it past their respective committees.

Interestingly, there is no prohibition on a former president serving as vice-president later on.  It's unclear whether a former president who has served two terms could Constitutionally become president if the current president leaves office (or if so, if the now-new president could serve more than two years).  Think of it like this:  If Hillary Clinton is elected president, would Bill Clinton legally be eligible to be vice-president?  And if Hillary leaves office after less than two years on the job, could Bill legally fulfill that term?  The theory, of course, has never been tested, but what an interesting debate that would be....

Amendment 23

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

Until this amendment was ratified on March 29, 1961, there was an ironic situation in the country that barred residents of Washington, D.C. - the seat of our national government - from voting in a presidential election.  Since D.C. was not a state, the residents thereof could not vote in a state election, which were the only ones authorized for presidential elections.  This amendment changed that by allowing votes cast in D.C. to be counted toward an electoral vote total equal to what the population of D.C. would have allowed, had it been a state (but no less than the number allotted to the least populous state - currently Wyoming).  How strange that it took so long to change this situation!

Amendment 25

1. In case of the removal of the President from office or of his death or resignation, the
Vice President shall become President.
2. Whenever there is a vacancy in the office of the Vice President, the President shall
nominate a Vice President who shall take office upon confirmation by a majority vote of
both Houses of Congress.
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.
4. Whenever the Vice President and a majority of either the principal officers of the
executive departments or of such other body as Congress may by law provide, transmit to
the President pro tempore of the Senate and the Speaker of the House of Representatives
their written declaration that the President is unable to discharge the powers and duties of
his office, the Vice President shall immediately assume the powers and duties of the
office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and
the Speaker of the House of Representatives his written declaration that no inability
exists, he shall resume the powers and duties of his office unless the Vice President and a
majority of either the principal officers of the executive department or of such other body
as Congress may by law provide, transmit within four days to the President pro tempore
of the Senate and the Speaker of the House of Representatives their written declaration
that the President is unable to discharge the powers and duties of his office. Thereupon
Congress shall decide the issue, assembling within forty eight hours for that purpose if
not in session. If the Congress, within twenty one days after receipt of the latter written
declaration, or, if Congress is not in session, within twenty one days after Congress is
required to assemble, determines by two thirds vote of both Houses that the President is
unable to discharge the powers and duties of his office, the Vice President shall continue
to discharge the same as Acting President; otherwise, the President shall resume the

powers and duties of his office.

Okay, this one is wordy, but it boils down to this:  

Case One: if the president is removed from office, the vice-president becomes president.  Pretty simple.  Think Ford taking over for Nixon (the first instance in which this amendment applied after ratification on February 10, 1967.

Case Two: if the vice-president is removed from office, the president nominates a replacement, with consent of the Congress.  Again, think of Nixon - when VP Spiro Agnew resigned, Nixon nominated Ford to replace him.  Interesting side note:  taking the two cases above in reverse order, Ford is the only president in our history to have held that office while being elected neither to the presidency nor to the vice-presidency!

Case Three:  If the president realizes he cannot discharge his duties, he can notify the Congress and transfer power to the VP as acting president until the actual president is ready to resume duties.  This has been invoked by Presidents Reagan and George W Bush when they underwent surgeries, temporarily transferring power to their respective VPs until recovered from surgery.

Case Four:  If the VP and executive leaders or the Congress determine that the president is incapable of fulfilling his duties, they may remove the power from him and invest it int he VP.  This has never been invoked, but perhaps should have been after the attempted assassination of Reagan.  He, of course, could not initiate the transfer on his own, as he was in surgery, and VP Bush could not initiate it, as he was on a plane and was not entirely sure of the situation, and by the time he landed, Reagan was out of surgery.  This, perhaps, was a case in which Congress could have stepped in, but they did not.

Well, that was a lot to digest, and we're almost done with the amendments.  

Next up:  Wrapping up the amendments with booze and money....