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....

Pay Up! The Sixteenth Amendment

The Sixteenth Amendment was ratified (Or was it?  Controversy to follow...) on Feb 2, 1913, and authorized the collection of an income tax on American citizens.  Prior to this amendment, taxes were apportioned among the states, according to population.  Since this method was not a proportional one, and nothing in the Constitution authorized it, an amendment was needed.

The text of the amendment is short and to the point:

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

That's it - your annual April 15th headache, in a nutshell.  Fork it over, citizens.

But as I mentioned, there was (and still is, in some fringe circles) some doubt about whether or not the amendment was ever actually ratified.  Those who take that position point to the fact that in some states, at least, the text the legislatures voted on had various typos, not the precise wording of the amendment (the differences being mainly matters of some word not being capitalized or some other word being in the singular instead of the plural - nothing that changed the actual content or intent of the amendment).  Some claim that since the legislatures in question did not vote on the precise wording of the amendment, they didn't really ratify it (and some go so far as to say that some bodies deliberately misspelled words in order to later claim they never ratified).  The fact is, the states have no authority to alter or edit what they were voting on - it's an up-or-down vote and if they voted for an income tax proposed by the federal government, then they voted to ratify the amendment.

But who among us doesn't secretly wish that maybe those folks are right and the income tax will be repealed?

Not gonna happen.  Not without a new tax to take its place, anyway.  Which sets up another interesting question:  if a future president and Congress decides to alter the way in which revenue is collected for the federal government (a consumption or value-added tax, for example), does the Sixteenth Amendment need to be repealed?  After all, the amendment merely authorizes an income tax, but doesn't mandate one.  Can we trust our representatives to leave the amendment intact and not use the power granted by it?  Or is it simply the nature of government to grow and accrue power, as Madison and the Federalists warned, and it's up to We, the People, to rein it in when necessary?

On a lighter note, here are a couple clips about taxes from one of my favorite movies (and no doubt what we all imagine Congress and the IRS to act like):

Next up:  The office-holding amendments