Friday, October 30, 2015

The Voting Amendments - 19, 23, 24, 26

A great number of Constitutional amendments deal with voting, which should come as no surprise.  Voting is, of course, the bedrock of democracy, and a right which we all properly hold dear.

We all remember that in the beginning (of our country, that is), the vote was reserved for white male property owners only.  Sure, we can look back and say, "That was awful," and look down our noses at the "unenlightened" Founders as examples of racism and sexism and other -isms.  But we must keep in mind that the conditions then were different than today, and we must be careful not commit the mistake of "presentism" when evaluating another time in history.

The theory back then was that only property owners should vote because they were the ones who had "skin in the game" - in other words, they were the ones paying taxes and funding the government, so they should be the ones making the decisions.  In a way, it makes sense, but as time went on, more and more people, naturally, wanted to vote and have a say in their own governance.  The first step in that direction was the Fifteenth Amendment (which we previously discussed here), removing race as an impediment to voting.  I could easily have included the Fifteenth Amendment in this entry, but thought it more properly belonged in the grouping of the Civil War and Reconstruction amendments.  So, let's begin with the Nineteenth Amendment and go chronologically...

Amendment 19
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Perhaps the most famous - and among the shortest in the number of words - of the voting amendments is the Nineteenth, which removed gender as a barrier to voting.  Note that I do not say, "It gave women the right to vote," because it did not.  As with every other part of the Bill of Rights and the amendments, it merely lifted a barrier to the exercise of a right that was already assumed to exist.  Read the first line again to help you understand this.  
As we discussed above, white male property owners were the "original" voters.  Then the Fifteenth Amendment removed race as an impediment to voting, but that had an effect only on black males.  Fully half the population was still locked out of the voting booth.  There are tons and tons of books and great research on the women's suffrage movement, and I won't do justice to their story in a blog, but it interesting to see that a newly-released movie ("Suffragette") with an all-star cast celebrates this achievement.  You can read about it here.
On a much lighter note, who doesn't love "Mary Poppins" and the song "Sister Suffragette"?
The Nineteenth Amendment was ratified in 1920, when the 36th state gave its approval.  (If I may indulge in a little hometown cheerleading, my home state of Wisconsin was the first to ratify.)  Twelve more states eventually voted in favor, making it unanimous (Alaska and Hawaii were not states at the time), though the last to cast its vote in favor of the amendment was Mississippi in 1984.
No other amendment removed voting barriers from more people than the 19th.
Amendment 23
Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:
A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Until the ratification of this amendment in 1961, the residents of Washington, D.C. had no vote in presidential elections.  Since D.C. is not a state, and the Constitution is explicit about electors being chosen in proportion to a state's congressional representation, the residents there had no electors, and therefore, no vote for president.  Ironic, isn't it, that the people who live where our federal government is headquartered were not allowed to vote for president?  Clearly, that wasn't fair, but it took over 180 years to fix that particular problem (actually, less than that since Washington, D.C. wasn't even created for some time after the Constitution went into effect, but still...).
Interestingly, from a partisan point of view, in every single presidential election since the amendment was ratified, D.C. voters have voted for the Democrat candidate.
This amendment was ratified by 40 states and was enacted in 1961, making 1964 the first presidential election year in which D.C. residents could participate.  Once state (Arkansas) rejected the amendment and nine have never taken action on it.
Amendment 24
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
This amendment formally abolished the poll tax, which was used in several, mostly southern, states as an impediment to blacks voting.  At the time of ratification in 1964, only five states still had such a tax, but that all ended immediately.
The poll tax was a tactic used by Democrat-led legislatures after Reconstruction in order to keep blacks and even poor whites from voting.  The tax was actually upheld originally in the Supreme Court decision Breedlove v Suttles in 1937.  The Supreme Court only overturned the Breedlove decision in 1966, after the passage of the 24th Amendment, citing the tax as a violation of the Equal Protection Clause of the Fourteenth Amendment (which we discussed here in my last entry).
38 states voted in favor of the amendment to get it ratified, while four more gave it their approval later.  Mississippi rejected it and eight states have never taken action on it.
Amendment 26
Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
Driven by the youth movement and student activism in the 1960s, the 26th Amendment lowered the voting age from 21 to 18.  The push to lower the voting age had begun decades earlier and had been endorsed by President Eisenhower in the 1950s.  President Nixon signed an extension of the Voting Rights Act to lower the voting age to 18 in all elections, but the Constitution had yet to be amended.  Eventually, the Senate passed the amendment unanimously and the House voted 401-19 in favor.  Ratification by the states was completed in 1971 when 38 states voted in favor.  Five more states ratified later (South Dakota waited until 2014 to ratify!) and seven states have taken no action.

Well, friends, that was a lot to digest.  I look forward to your comments and discussion.  
Next up: The Office-Holding Amendments

Monday, September 28, 2015

The Fourteenth Amendment - Permanent Shockwaves

As promised in the last issue, we'll tackle the Fourteenth Amendment by itself this time.  Outside of the amendments in the Bill of Rights, probably no other amendment to the Constitution has a greater effect on our daily life and political discourse than the fourteenth.

It was ratified on July 9, 1868 as one of the "Reconstruction Amendments", often being grouped together with the 13th and 15th, as we discussed in the last blog.  Let's begin with the actual text (also one of the longest of the amendments):

Section 1.

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

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Now, let's tackle each section one at a time, but not get too terribly deep into the weeds.
Section 1:  This contains several clauses, referred to as "The Citizenship Clause", "The Privileges and Immunities Clause", "The Due Process Clause" and "The Equal Protection Clause".  This amendments, and this section in particular, is one of the most-litigated parts of the Constitution.  It was the basis for such famous decisions as "Roe v Wade" (abortion), "Bush v Gore" (the 2000 presidential election) and "Obergefell v Hodges" (same-sex marriage).
The Citizenship Clause is in the news these days as the country debates our immigration policy.  Historically, it's been understood that anyone born on U.S. soil is automatically a citizen, based on the first part of the first sentence - "All persons born or naturalized in the United States...".  This partial sentence leads to what some critics call "anchor babies" - children of illegal immigrants who, by virtue of being born in the U.S. are automatically citizens.  The critics point out that the second part of the sentence "...and subject to the jurisdiction thereof" excludes "anchor babies", as their parents, and therefore, the babies, are subject to the jurisdiction of another country in terms of actual citizenship, and therefore, cannot be citizens of the U.S. based simply on the geography of childbirth.  This clause was also the basis of overturning the notorious "Dred Scott" decision. It also excluded Native Americans who maintained tribal citizenship and loyalty (the option for them to become U.S. citizens was gradually offered over the next century or so).  Surprisingly, the Supreme Court has never issued a definitive opinion on the subject of the "anchor baby" debate.  This could get interesting...
The Privileges and Immunities Clause ensures that one state cannot discriminate against the citizens of another state in terms of fundamental rights.  It does not apply to commerce (for example, a professional license in one state does not automatically transfer to another).
The Due Process Clause ensures that no state may deprive anyone of life, liberty or property without specific legislative guidance.  This clause has also been employed by the Supreme Court to "incorprate" the Bill of Rights against the states, meaning that the protections of the Bill of Rights apply to all levels of government, not just the federal.
And finally, the Equal Protection Clause is the basis for much of the Civil Rights cases, including "Brown v Board of Education" and the previously mentioned "Obergefell".  It has been interpreted to ensure that citizens' rights in one state are upheld in all others.  As you may imagine, its scope is vast, and seems to increase as time passes.
Section 2: This changed the manner in which the states' populations are counted for representation purposes.  It effectively nullified the "Three-Fifths" clause in Article I of the Constitution, which counted only 3/5 of a state's slave population.  It also provides for a state's representation to be reduced if it wrongly denies any (male) citizen's right to vote (adding women to this clause would happen with the passage of the 19th Amendment 50 years later....)
Section 3:  Effectively bans traitors and rebels who formerly held office from ever again holding office.  Yes, this was mostly a punishment for former Confederate officers and officials, but notably, the bans on General Robert E. Lee and Confederate president Jefferson Davis were posthumously lifted about a century later.  Also, such a ban can be lifted by a two-thirds vote in Congress on a case-by-case basis.
Section 4:  This declares that all debt held by the United States is not to be questioned or put in any sort of jeopardy.  It also ensured that the federal government was not liable for loss of slaves or property in the Confederacy.  In a more contemporary context, this is the basis for the debate over the "debt ceiling".  A literal reading of the section might imply that having a debt ceiling at all is unconstitutional, since the federal debt is not to be put in doubt as to its validity or the federal government's ability to pay.  Some analysts argue that the president has the implied power to raise the debt ceiling so as not to violate that tenet, but others insist that the president has no power to do so, as all revenue bills must originate in the House of Representatives, according to Article I of the Constitution.  The pragmatists will argue that our debt, legitimate or not, cannot be forever increased and must be addressed strongly.  But that's an argument outside the actual language of the amendment.
Section 5: This is boilerplate language that becomes common in amendments, giving Congress broad latitude to enact laws pursuant to the amendment in order to put is provisions into effect.

Well, that's a large amendment, with far-reaching effects, and will continue to do so for as long as our country exists, in all likelihood.  Hope you've stayed awake and with me so far.
Next up: The "Election Amendments"

Sunday, September 20, 2015

The Civil War and Reconstruction - Amendments 13-15 (and the 24th), Plus a Special Treat

After another unforgivably long gap, and another pilgrimage to the National Constitution Center, it's time for the next installment.  In keeping with my earlier plan of grouping similar amendments together, this set is pretty handy, as they are all close together chronologically and in subject matter.

Often called the Reconstruction Amendments or Civil War Amendments, numbers thirteen fourteen and fifteen all deal with the causes and effects of the Civil War and its aftermath.  They were ratified during and after the war (13 - 1865, 14 - 1868 and 15 - 1870)  and dealt with (some of) the unresolved issues of the day.  In this blog, we'll concentrate on the thirteenth and fifteenth Amendments and touch on the twenty-fourth, too.  We'll briefly mention the fourteenth, but that one needs an entry all to itself, and why that is will be clear later.

The Thirteenth Amendment says:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Pretty straightforward.  This amendment ended slavery in the United States and its territories.  Period.  It's often thought and taught that Lincoln's Emancipation Proclamation ended slavery, but it had no force of fundamental law.  It was great a bit of writing, of course, but it was really an expedient wartime act, not a fundamental change in our country's governing document.  The 13th Amendment was the focus of the recent Oscar-winning movie "Lincoln" by Steven Spielberg.  Though serious historians may argue the details of the debate over the amendment as shown in the film, I'd still highly recommend the movie to one and all, if for no other reason than to see Daniel Day-Lewis' stunning portrayal of Lincoln.  
The Fourteenth Amendment will get short shrift here, and I promise to make it up in the next entry. The reason for that is that the 14th is very dense and is probably the amendment (outside of the Bill of Rights Amendments) that has the most direct affect on out daily lives and contemporary political debates and discussions.  You may be surprised at how far-reaching it has become, on topics from abortion to same-sex marriage to civil rights and affirmative action and more.  That may be a really long blog...
So, let's skip ahead to the Fifteenth Amendment, another short and sweet one.
Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Again, pretty clear and unambiguous.  Race is no basis for the denial of voting rights.  (Sadly, gender still was - it would be 50 more years before the 19th Amendment was ratified, lifting the barrier that kept women from voting.).  
The voting rights of black Americans was further reinforced a century later with the elimination of the poll tax in 1964 with the ratification of the 24th Amendment.  
Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article by appropriate legislation.
The poll tax had been adopted in many of the former states of the Confederacy in order to discourage voting by blacks and poor whites, though by the time the amendment was ratified, only five states still had a poll tax, and the amendment barred such taxes for federal elections.  In 1966, the Supreme Court ruled in Harper v Virginia Board of Elections that poll taxes of any sort were unconstitutional, saying they violated the Equal Protection Clause of the 14th Amendment (see why we have to do the 14th on its own?).
There is one fundamentally important point I want to make here.  Read the amendments above very carefully.  There is some language usage that needs proper emphasis.  It's often said that the fifteenth amendment gave blacks the right to vote and the nineteenth gave women the right to vote.  Not true.  The amendments, as written say nothing about giving anyone the right to vote.  They say that the right of (blacks or women) to vote will not be denied based on race or gender.  In other words, the right was always there, as a fundamental thing.  The amendments merely removed the obstacles in the way of exercising those inherent rights.  That's critical to understand, not just in these cases, but when trying to understand the Constitution in general.  Nothing in the document gives anyone any rights.  Rights are not the government's (or the Constitution's) to give.  The Constitution merely restrains the government from placing barriers to the exercise of those inherent rights.  Go back and read the Bill of Rights.  Not a single right was granted, but all rights mentioned are assumed to pre-exist and are merely protected by the amendments.

Now, for a treat.  Thinking about the Civil War/Reconstruction Amendments brings to mind the recent controversy over the Confederate battle flag.  I have an essay here, written by Duane J. Rodel, which I think all of you will find well-reasoned and thought-provoking.  
To establish Mr. Rodel's bona fides, he is a graduate of Ripon College, where he earned degrees in History and English, was named to the Dean's List and graduated with departmental honors in History.  He also earned a Master's Degree from the highly-regarded School of Library and Information Studies at the University of Wisconsin, where he specialized in archiving.  He has worked as a digital archivist at the Wisconsin Veterans Museum, where he embarked on a multi-year project to make all of the museum's Civil War records digital and available online for the public to view at will.  See here for a preview of some of the museum's archival material.  There is no one I know personally who is better qualified to comment on Civil War history and its context as it relates to our modern time.  Enjoy!

On the Confederate Battle Flag

In the wake of the horrific and tragic shooting in Charleston, there
has been a lot of figurative ink spilled over a photo of the shooter,
Dylann Roof. Seen posing in a photograph with a Confederate flag - to
be precise, the Confederate Battle Flag, designed by William Porcher
Miles in 1861 - the uproar has prompted a number of Southern states to
begin reconsidering its use in their iconography and its display
on public grounds, and retailers to pull it from shelves physical
and virtual.

Comparatively less noise has been made about the other photo, which
shows Roof burning a US flag clutched in his hand. This photo,
however, is the more telling one, and reveals exactly why the
Confederate flag needs to be retired to the museum and the
re-enactment once and for all.

Whatever it is supposed to mean now, the cold hard truth behind the
flag is that it was designed for an illegitimate state: a state which
came into being not as a result of an over-reaching edict from the
President or Congress, but because of the simple results of an
election, a state that was founded not even with the implicit intent
to preserve and perpetuate racist human slavery but the very explicit
purpose to do so, a state whose first significant act was opening fire
on U.S. troops at a U.S. military installation, Fort Sumter. This
state was the deadliest foe the United States of America had ever
faced and remains its deadliest, two centuries on. Only World War II
had more combat casualties, and only if you combine the total
casualties of every other war before and since the Civil War will you exceed
it. It should be inconceivable that anyone who considers him- or herself a
patriot for this country to cling to such a symbol, and the
photographs of Roof only go to show that true love for this country
and her people are fundamentally incompatible with clinging to the
legacy of the Confederate States.

Those who survived that hellish maelstrom felt its affects the rest of
their lives and also felt, as strongly as any veteran of wars of the
20th and 21st century, the desire to not see their sacrifice and the
sacrifices of their family, friends, comrades and neighbors
invalidated. Lucius Fairchild, Civil War veteran and tenth Governor of
Wisconsin, had this to say about an executive order issued by
President Grover Cleveland mandating the return of captured
Confederate battle flags:

"May God palsy the hand that wrote that order! May God palsy the brain
that conceived it, and may God palsy the tongue that dictated it!"

Aside from putting to bed the notion that venom in politics is a
modern invention, it shows just how strongly and passionately veterans
of the Civil War felt about the importance - and moral necessity - of
what they had done. Cleveland wisely rescinded the order shortly after
this outburst.

The notion that neither North nor South was the antagonist or
protagonist of the war is historical revisionism, a revisionism so old
it has itself become history. The romance and myth of the Lost Cause
of the Confederacy - the idea that noble, idyllic antebellum life was
shattered by a tragic war which was unavoidable and for which nobody
holds fault - dates back to 1866, a mere year after the war's
conclusion at Appomattox and the assassination of our President, and
from that day forward apologists have been tireless in redefining and
obscuring the war's cause and origin in our collective memory. It has
since metastasized and spread beyond the borders of the former
Confederacy and infected mainstream thought across the United States,
and cultural landmarks, such as “Birth of a Nation” and “Gone With the
Wind”, have unfortunately only helped cement its place there.

This, combined with Nixon's use of the Southern Strategy in the 1960s,
has created a bizarro world where some Republicans go out of their way
to defend a symbol that our first Republican President was murdered
for defeating, and for which thousands of American soldiers died to
remove from our shores.

Some have argued that time has divorced the flag from its legacy as a
symbol of the Confederate States of America, and that it now only
stands to champion Southern values. If that is indeed the case, then
why does its removal matter? If it has become innocuous, then getting
rid of it or replacing it should not be the trauma that many are
making of it.

There is much that is great about the South - some of the most
uniquely American music, cuisine, architecture, and art comes from the
South. I have to ask, then, why not rally to those sorts of icons as a
signifier of Southern identity instead? Why crouch forever in the
shadow of an illegitimate, failed state which existed less than a
decade and which killed hundreds of thousands of Americans and
enslaved thousands more in that failed bid to exist?

Similarly, there are great military minds and traditions that have
arisen in the South before and after the war that deserve greater
praise than her rebellious generals. Off the top of my head, General
Douglas MacArthur - the great commander who led us to victory in the
Pacific in World War II - was a son of Arkansas and a graduate of West
Texas Military Academy. I am sure there are many others besides him.
Norfolk, Virginia is the beating heart of our Navy. Aviation has its
roots in the soil and sandy beaches of North Carolina. All of this
greatness is divisible from the legacy of the Confederate States, and
if anything, surpasses it. Nathan Bedford Forrest would not be worthy
to shine MacArthur's boots - he is certainly not worth a statue.
To some, it's a problem of timing: coming after successive waves of
politicized racial unrest and a breakdown in law and order that has
polarized the nation, some Republicans feel it would be handing another victory to
the Democratic party and its agenda. I say that the controversy over
the flag is neither here nor there - it's a reckoning that is
one hundred and fifty years overdue. I do not share the beliefs that
many rallying under the #TakeDownTheFlag hashtag do about this country
- that racism is part of our DNA or that it is an inescapable original
sin, for which we must endlessly self-flagellate. But I recognize
that, even when you are coming from the wrong premise, you can
occasionally draw and fight for the right conclusion. As the cliché
goes, "Even a broken clock is right twice a day," and the hour has
finally struck for this last legacy of the Confederate States.

As a Catholic, part of my religious education and upbringing involved
not just learning about the good parts of the history of the Catholic
Church, but also recognizing the bad. I can be inspired by the great
artwork and architecture of St. Peter's Basilica without losing sight
of the overreach and corruption of the medieval church in selling
indulgences. So too, I think Southerners can - and must - learn to
recognize the mistakes in their past, even as they celebrate their
glories, and to stop mistaking one for the other. And part of this
process must involve putting aside that flag once and for all.

© Duane J. Rodel, July 6, 2015, Madison, WI

Friday, July 3, 2015

Amendments 11 and 12 - Clarifying A Few Things

After a few posts not having to do directly with the Constitution, let's get back to the amendments.  We left off at the end of the Bill of Rights and now we will take a look at the first two amendments after the Bill of Rights.

Amendment 11, ratified in 1795, says this:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Which means what, exactly?  It means that a state cannot be sued in federal court except under certain circumstances (defined later).  This amendment was a reaction to the Chisholm v Georgia case after the Revolutionary war, in which a South Carolina man sued the State of Georgia for payments due for supplies delivered to the state during the war.  Georgia refused to appear, claiming sovereign immunity, and the court ruled against Georgia.  The ruling was so controversial that the 11th Amendment was adopted in response and was ratified in less than two years after the decision.  Essentially, it removed most federal jurisdiction over cases in which a state is sued by someone outside the state.  There's a lot of legal detail involved, but basically, it gave power back to the state court systems that Congress thought the Supreme Court had inappropriately given itself in the Chisholm case.

This is one of those amendments, like the 3rd, that makes a great party trivia question...

Amendment 12, ratified in 1804 has a much longer text, one of the wordiest of all amendments.  It reads:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
This amendment fixed a flaw in the original method of electing the president, as set forth in Article II, in which each elector could cast two votes for president. For the first four elections, the process was this: the electors cast their votes and whoever got the most votes, assuming it was a majority of the total, was president. If no one got a majority, the top five vote-getters would be put to a vote in the House and the one who got a majority there would be president. Choosing the vice-president was easier - whoever came in second, even if he did not get a majority, was vice president.

By the third election for president (1796), the first major flaw was apparent.  Federalist John Adams got a majority of the electors' first votes and was elected president, but his rival, Democratic-Republican Thomas Jefferson, finished with the most second votes, and was therefore vice president.  It became clear that having rivals in the offices would not be conducive to good working relationships.

Four years later, the election of 1800, which we discussed previously here, exposed yet another flaw by showing that if electors split their votes evenly between members of the same party, two candidates from the same party would get the same number of votes, throwing the election into the House.  A plan for one Democratic-Republican elector to withhold his second vote for Aaron Burr was bungled, giving Burr and Jefferson the same number of votes.  The resulting House vote was a marathon affair, taking a total of 36 ballots to finally elect Jefferson president.

An interesting feature of the amendment is that if the election is sent to the House, each state has a vote, not each representative.  Since adoption of the amendment, a presidential election has gone to the House only once, in 1824, when John Quincy Adams defeated Andrew Jackson 13-7 (with William Crawford earning 4 votes), even though Jackson had earned the most (but not a majority) in the initial electoral vote 99-84 versus Adams (with two others totaling 78 votes).

The 12th Amendment, in effect, directed electors to make discrete votes for president and vice-president.

Next up - Amendments 13-15, the "Civil War Amendments" (and maybe a guest blogger - stay tuned!).

Monday, June 15, 2015

Magna Carta, You're Looking Good For 800!

Today, June 15, 2015, marks the 800th birthday of the Magna Carta, one of the most influential single documents - perhaps the most - in the history of the world.  It laid the foundation for later great charters, like the U.S. Constitution and Declaration of Independence, and the general concept that everyone is subject to the law, even the king.

The Magna Carta is also one of those things most of us read about in school and promptly forgot after the test, am I right?  I'd thought about writing a lengthy explanation of the history of the Magna Carta to show everyone reading how terribly important it is to our modern world.  Then, during my research, I came across a couple things that did the job better than I could.  Hey, it's a blog, after all, not a doctoral thesis.  Two of the most learned and entertaining people I know (or know of) offered up their takes on the Magna Carta.  First up is Terry Jones, most famously of the Monty Python troupe.  Mr. Jones, however, is also quite the history aficionado, and has appeared on TV shows such as "The Complete and Utter History of Britain" and is also an Emmy-nominated ("Outstanding Writing for Nonfiction Programming") writer of the series "Terry Jones' Medieval Lives".  Mr. Jones made this short, entertaining and informative video on the Magna Carta:

The other gentleman I'd like to quote is my lifelong friend, Mike Pedrotty.  Mike is an award-winning teacher at Airline High School in Bossier City, Louisiana, and was named National History Bowl Coach of the Year.  The man knows what he's talking about...  Anyway, I posted a story about Magna Carta on Facebook a while back and Mike responded with this gem:

I do teach the Magna Carta to my AP Gov students, and I do think it's important, but the story is more complex than I think is commonly understood. 

Warning: Long post ahead. Proceed at your own risk.

I would disagree with this article in characterizing John as a tyrant who brutally taxed poor Englishmen to finance his foreign wars. He was an uncharismatic and very unpopular king who was an able bureaucrat, and a vigorous and imaginative tax collector. His barons hated him because he demanded the full measure of what they owed him (and then some) in terms of both manpower and treasure. 

But the "foreign wars" were anything but foreign. John needed those resources to fight Philip Augustus of France in defense of England's possessions in France (England owned more of France than France did, until Philip got done taking most of it from John). The lands he was trying to defend were often the French fiefs of the very barons who opposed him in England. They had just got used to Henry II and Richard I defending them with fewer taxes. They were able to do so because they didn't have to fight a Philip Augustus, who was himself a great bureaucrat and taxer.

More to the point, the Magna Carta is only a foundational document for our Constitution in that it is an early example of limited government, an early example of subjects telling a king that his power was not limitless. However, in this case, it only protected the rights of the great English barons, who were utterly unconcerned with the rights of commoners, burgers, serfs, and the like. It also bound the king's power not by written law, but by tradition. Finally, it was torn up by John as soon as he escaped the field at Runnymeed and was ignored by later monarchs in England and everywhere else. The real check on English royal power comes from Parliament, whose power grows very gradually from the time of Edward I onward, and then really comes to rival that of the king only in the 17th century through its struggle against the Stuarts (who tried and failed to rule as absolute monarchs along the lines of Louis XIV). In this fight, English jurists did harken back to the Magna Carta to support their conception of limited monarchy, and it's really here that the document becomes part of the corpus that would lead to the Constitution. But some random English serf or townsman in 1215 would not have known that the powers of the king had suddenly been limited.

That's my take, anyway.

Thanks, Mike and Terry, for a great lesson on a great piece of history!

Saturday, May 30, 2015

Your Host Hits the Airwaves and Hamilton Hits Broadway

Rockin' the YWC t-shirt and
pocket Constitution from the
 National Constitution Center
Time for some fun.  We've been talking a lot lately about very serious topics that can cause tensions and emotions to run high, so let's kick back and enjoy a little good, clean entertainment.

I've mentioned before, in a blog on educational resources, a radio show called "Your Weekly Constitutional", which I listen to on podcast because it isn't aired in my area (and I can never be sure to be near a radio when it would be on, anyway).  A few months ago, I emailed the host, asking to be considered for a chance to be their Constitutional Quiz contestant and I was selected.  We recorded the quiz a while back and it was just aired this week.  You can hear how it went here:  (Episode  "Thomas Jefferson's Vision of Religious Freedom")

or here:

or go to iTunes and search for "Your Weekly Constitutional" and select the episode entitled "Thomas Jefferson's Vision of Religious Freedom".  Of course, you should listen to the entire episode, but if you want to go straight to the quiz, skip forward to the 14 minute mark and see if you can solve the riddle along with me!

One of the earliest blogs I wrote was on Alexander Hamilton and at the end, I linked to a video you can see here.  It's a performance by playwright Lin-Manuel Miranda at the White House, doing a hip-hop song about Hamilton.

Since then, Miranda has developed it into a full-up musical and it's been the hottest off-Broadway ticket this spring and moves onto Broadway soon.  You can see some highlights here:

The website for the show is:

How appropriate the one of the most New York-y founders is on Broadway!

Monday, April 27, 2015

The Chicken or the Egg? Or, Whose Rights Come First?

After another unforgivably long absence, we're back with more discussion of the Constitution and its relevance to current events.

One of the most-talked about topics in recent weeks is the State of Indiana's Religious Freedom Restoration Act and the reaction to it from across the country.  Friends, this is a minefield and we need to proceed very carefully and precisely, lest we let the emotional issues (the mines) blow up in our faces, as we try to focus on the Constitutional issues at hand.  It's a tough path to navigate, as emotions inevitably bubble up in these kinds of topics.

Full disclosure:  I am Catholic and as we proceed through this blog, I'll be referencing Catholic theology where theology needs to be discussed or illustrated.  Not because I think Catholic theology is the "most correct" (though, of course, I do think so, otherwise, why would I be Catholic, right?) but merely because that's the theology I'm most familiar with, having taught Catholic religious education for over a decade.  Further disclosure: I have friends and family who are gay, some of whom are married, in accordance with the laws of their states, and I love them all and are quite happy for them.

OK, enough with the disclaimers.  What are we talking about here?  Earlier this year, the Indiana legislature passed, and the governor signed, a Religious Freedom Restoration Act which was modeled after the federal act of nearly two decades ago.  The federal act - largely written in response to the Supreme Court's Employment Division vs Smith case - passed both houses of Congress almost unanimously (no "nay" votes in the House and 97-3 in the Senate) and was signed by President Bill Clinton.  So why the big deal about Indiana's act, which on the surface seems merely redundant?

The text of the two acts are nearly identical, but "nearly" is the key word.  There are a couple very small, but very important distinctions.  But before we get into that, let's review the intent of RFRA-type acts.  In a nutshell, these types of laws (both federal and in roughly 20 states) codify the principle that the government may not "substantially burden" a person's religious beliefs or practices unless there is a "compelling government interest" in doing so, and in which case, the remedy must be by the least restrictive means possible in order to achieve that compelling interest.  To make an extreme example, if your religion includes human sacrifice, well, naturally, the government may feel compelled to step in and put a stop to the practice, but can only restrict your religious practices to the point of stopping the sacrifices, not shutting down your whole "church".

Now to the differences.  The first difference is that the Indiana statute explicitly defines that "persons" who are protected under the statute includes corporations that are closely held by individuals or small groups (i.e., families).  While the federal RFRA does not state this specifically, it was held by the Supreme Court to be interpreted that way in the Hobby Lobby case, which we discussed here.

The second small, but important difference is that the Indiana statute applies not only to disputes that arise between an individual and the government, which is a clear First Amendment issue, but also applies to disputes between individual citizens, which is not a First Amendment issue.

The first difference is not the most controversial one, as it has been fairly well settled (at least for now) by the Supreme Court, so let's focus on the second one, which seems to be drawing the most controversy.  In the most often-cited argument by opponents of the law, they say that this statute could allow a photographer or a florist, for example, to use their strongly-held religious beliefs to legally refuse to participate in a same-sex wedding, in other words, to discriminate against the couple being married.  Certainly, none of us here reading this are in any way in favor of discrimination, but here's where it gets tricky from a Constitutional standpoint.  Buckle your seat belts...

The relevant part of the First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof".  The second half of that section is the one under debate.  While again, we should not, and must not, condone wanton discrimination, if the government can compel someone to participate in an activity that runs counter to a deeply-held religious belief, does that not violate the "free exercise thereof" part?  Each of us does not hold the same religious beliefs, if any at all, and the Supreme Court has repeatedly - and wisely, I think - held that they, the Court, do not possess the competence to decide which religious beliefs are "valid" and which are not.  There are those I've encountered who think that the Catholic Church is the tool of Satan (yes, really - I've run into those who have said that verbatim), but I do not deny them the right to think that and to publish that belief, even if I find it offensive and hurtful.  That's a private individual's opinion, so, like, whatever, right?

Let's take, as example, the teaching of the Catholic Church on marriage and on homosexuality as an illustration of the difficulty that even devout religious people may have with this issue.  Paragraph 1625 of the Catechism of the Catholic Church (that's the official teaching document of the Church) states: "The parties to a marriage covenant are a baptized man and woman, free to contract marriage, who freely express their consent."  To the devout Catholic, this is clear and unambiguous.  Any other arrangement would be considered disordered (that is, not in order with the teaching of the Church).  The Church also teaches (in Paragraph 2357) that homosexual acts are "intrinsically disordered", that is, not in order with nature, that is, not open to procreation, which the Church teaches should not be separated from the unitive aspect of sex, thus the teaching against sex outside of marriage.  The Church calls all homosexual people (as with all unmarried people) therefore, to a life of chastity.  Many people - perhaps most, even - in American society might disagree with some or all of the above, but it doesn't change the fact that the above is without question a strongly-held position of religious belief for some, and to act in a way that violates these precepts does indeed place a substantial burden on their religious beliefs.  

But let me muddy the water a little bit (more) for us long-suffering Catholics (yeah, I know, poor us, right?) to further illustrate how difficult this issue is.  The Catechism also says this (Paragraph 2358, in part):  "The number of men and women who have deep-seated homosexual tendencies is not negligible. This inclination...constitutes for most of them a trial. They must be accepted with respect, compassion, and sensitivity. Every sign of unjust discrimination in their regard should be avoided...."  My gosh - what's a poor Catholic to do?  So, you can see the problem that even a devout person of faith may encounter in trying to satisfy both one's religious faith and one's faith to the Constitution and the law and even sense of fair play.

Back to Indiana.  Again, the difference in the Indiana law versus the federal law is that it protects an individual from action by another individual, not just from government action.  If a suit is brought by, let's say, a lesbian couple who wanted to contract a particular baker to make a wedding cake for them, and the baker refused on religious grounds, the law protects the baker.  The state has no part in the lawsuit (other than, of course, providing the courtroom and judge, but is not a party to the suit).  Opponents of the law will say this codifies discrimination, while supporters say it protects religious freedom - yes, even religious beliefs that may not be popular in contemporary society.  Which brings me back to the title of this piece: The Chicken or the Egg?  Or, Whose Rights Come First?  Or the better question might be this:  Whose rights are more important?  Can we even decide that?

We, in this country, have a number of great traditions.  Freedom of religion is one.  We have people of all faiths (or no faith at all) living side-by-side, living and letting live (with the rare, extreme instances of deadly cults, which may trigger the whole "compelling government interest" thing).  Look at most cities and towns around the country - there are churches and temples and other houses of worship of all sorts of denominations existing within the same city limits.  We may find the beliefs of that "other" church silly or even offensive, but we, as the bumper sticker says, "Coexist".

Another great tradition we have, speaking of coexisting, is acceptance of others.  You know, "different people."  While we have indeed had shameful periods of less-than-charitable attitudes towards people of different backgrounds and behaviors ("Irish need not apply") and even state-sponsored discrimination (slavery, Jim Crow, Black Codes), we steadily evolve away from those behaviors over time.  We tolerate (though perhaps through gritted teeth) even those whose beliefs and behaviors seem abhorrent and backward to us and we afford them protections under the Constitution (KKK, American Nazi Party, Westboro Baptist Church).

This issue is by no means a black-and-white one (sorry for the bad Civil Rights pun), but one that really gets to the heart of the Constitution, the law, individual freedoms and rights and just plain polite behavior.  I have a feeling we're nowhere near the safe edge of the minefield yet, but I hope here, in this blog, at least, we've not stepped on any.