 Welcome to the U.S. Constitution, the Bill of Rights and Additional Amendments, a presentation of the Cato University, a project of the Cato Institute. The U.S. Constitution, the Bill of Rights and Additional Amendments, was written by Jeffrey Rogers Hummel and narrated by Walter Cronkite. The quotations are read by Pat Childs, E.R. Davies, Craig Deichmann, Michael Edwards, David Ford, Travis Hardison, Don Jones, John Lutz, Wendy McElroy, Sam Mercurio, Michael Montgomery, Hugh Sinclair, Ruth Sweet, Sam Tsutsivas, and Robert Winn. This recording of the U.S. Constitution, the Bill of Rights and Additional Amendments, was produced in 1987 by Carmichael and Carmichael Incorporated, which holds the copyright there too. Neither this recording nor any portion of it may be reproduced or used for any purpose without prior written authorization from Carmichael and Carmichael Incorporated. On December 20, 1787, Thomas Jefferson wrote to his close friend James Madison regarding the proposed Constitution. I like much the general idea of framing a government which should go on of itself peaceably without needing continual recurrent to the state legislature. I like the organization of the government into legislative, judiciary, and executive. I am captivated by the compromise of the opposite claims of great and little states, of the latter to equal and the former to proportional influence. I am much pleased too with the substitution of the method of voting by persons instead of that of voting by states. Jefferson went on to add what he did not like about the Constitution. First, the omission of a bill of rights, providing clearly and without the aid of Sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact, trialable by the laws of the land and not by the laws of nations. The American demand for a bill of rights drew heavily upon the traditions of English history. When American colonists looked back on their heritage, they looked across the ocean to British precedence. In June of 1215, on the meadow of Runnymede and at the sword point of his barons, King John of England affixed his seal to the Magna Carter. The 63 clauses of this legendary document were the product of elaborate negotiations between the King and a rebellious nobility who had been driven to take up arms by the heavy taxes and other burdensome feudal obligations required to conduct foreign wars. Two of the Magna Carter's most famous clauses deal with a feudal tax called Scottish and with punishment under feudal laws. Clause 12. Scottish or AIDS shall be levied in our kingdom only by the common counsel of our kingdom, except for ransoming our body, for nighting our eldest son, and for once marrying our eldest daughter. And for these only a reasonable aid shall be taken. The same provision shall hold with regard to the AIDS of the City of London. Clause 39. No freeman may be arrested or imprisoned or deprived of his land or outlawed or exiled in any way brought to ruin, nor shall we go against him nor send others in pursuit of him except by the legal judgment of his peers or by the law of the land. Later generations of Englishmen and of Americans would interpret these provisions broadly to prescribe taxation without representation and to ordain trial by jury. The original intent, however, was much more modest. The word freeman in Clause 39, for instance, was a technical feudal term with a much more restricted meaning than it presently possesses. It is unlikely that even the richer merchants of that period were included under the label freeman. In effect, there are two Magna Carter's, the historical one and the mythical or evolving one. The historical Magna Carter is a document of relatively limited scope designed to protect the traditional privileges of a discontented ruling class from the authority of the king. The mythical Magna Carter became the foundation of English liberties. Both, however, incorporate the same core principle, that there is a higher law above the king which even he must respect. Eventually, this principle would find its fullest embodiment in the American Bill of Rights. In the next 150 years, the Magna Carter was reissued 38 times and its promise that taxes shall be levied only by the common consent of the kingdom was realized only through the emergence of the British parliament. But the Magna Carter fell dormant. At the end of the 15th century, English monarchs began to create a modern, centralized nation state by consolidating power into their own hands. Until the 17th century, as the English planted their first permanent colonies in America, was the Magna Carter resurrected. It became the rallying cry of parliamentary opponents of absolute monarchy who wished to check the arbitrary authority of the Stuart Kings. It also became the basis for the next great charter of English and American colonial liberties, the Petition of Right. The Petition of Right was passed by parliament in 1628. Like the Magna Carter, it was a response to foreign wars. Charles I needed money for an expensive and bungled war against France, but parliament refused to grant Charles any new revenue unless he submitted to their petition. Explicitly citing the Magna Carter as a source of traditional English liberties, the petition called upon Charles to cease violating these liberties through such measures as martial law. He spoke on behalf of parliament to the king. They do therefore humbly pray, your most excellent majesty, that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax or such like charge without common consent by act of parliament, that no man should be put out of his land or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought to answer by due process of law. By signing the Petition of Right, Charles I did not simply agree to these specific conditions. He implicitly acknowledged that there were constitutional limitations upon his authority. He thereby provided a direct precedent for Americans to follow before and during the American Revolution. Unfortunately, Charles failed to honor the Petition of Right, thus ushering in a civil war and a revolution which led to his beheading. The final settlement of this long conflict, known as the Glorious Revolution, produced a third great charter of English liberty, the Bill of Rights of 1689. Many of its guarantees sound familiar. The said lords declare that the pretended power of suspending parliament is illegal, that the pretended power of dispensing with laws or the execution of laws by legal authority, as it hath been assumed and exercised of late, is illegal, that it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal. The 1689 Bill of Rights addressed three of the most hotly debated topics in American history, standing armies, trial by jury, and due process. That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of parliament, is against law. That the subjects which are protestants may have arms for their defense suitable to their conditions and as allowed by law. That election of members of parliament ought to be free. That excessive bail ought not to be required nor excessive fines imposed, nor cruel and unusual punishments inflicted. That jurors ought to be duly impaneled and returned, and jurors which pass upon men in trials for high treason ought to be free holders. That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void, and that for redress of all grievances and for the amending, strengthening and preserving of the laws, parliaments ought to be held frequently. In one vital respect, the English Bill of Rights was less encompassing than either the Magna Carta or the Petition of Right. The previous documents implied that there was a higher law binding upon the king and upon all government. The Bill of Rights was technically a statute that parliament could repeal. Americans were acutely aware of these three charters of English liberties as they drifted toward revolt against the mother country. These were the prominent landmarks of their English heritage. In addition to these three charters, such principles as trial by jury, habeas corpus and the right against self-incrimination had become solidly encased in English common law. The common law was a body of written and unwritten traditions and evolving precedents that guided English courts. It formed the basis of all colonial legal systems. Colonial governments often carried liberty one step farther. For instance, the Massachusetts body of liberties was passed almost 50 years before the English Bill of Rights. It provided for freedom of petition at public meetings, for protection against double jeopardy and against cruel and unusual punishment, for the right not to have private property taken without just compensation, and for the right to bail, to counsel, and to a jury trial. The American Revolutionaries wanted to place these fundamental liberties beyond the caprice of their rulers, so they built upon the English tradition by inscribing restraints into the written constitutions of their newly independent state governments. The first true Bill of Rights in the modern American sense was the Virginia Declaration of Rights. It was adopted even before Congress declared independence. The author of the Virginia Declaration of Rights was George Mason. This wealthy Virginia planter was seven years older than his illustrious Potomac River neighbor, George Washington. Though Mason has almost forgotten, he was one of the most important founding fathers. Neither a lawyer nor a college graduate, he knew more about English constitutional law than most two were. Edmund Randolph, a fellow delegate at the convention that adopted Mason's Declaration of Rights, attests to his character and influence. Among the numbers who in their small circles were propagating with activity the American doctrines was George Mason in the shade of retirement. He extended their grasp upon the opinions and affections of those with whom he conversed. How he learned his indifference for distinction endowed as he was with ability to mount in any line, or whence he contracted his hatred for pomp with a fortune competent at any expense, and a disposition not averse from hospitality, can be solved only from that philosophic spirit which despised the adulterated means of cultivating happiness. He was behind none of the sons of Virginia in knowledge of her history and interest. At a glance, he saw to the bottom of every proposition which affected her. Mason avoided the limelight. He refused to represent Virginia in the Continental Congress and in later years declined a vacancy in the U.S. Senate. In the spring of 1776, however, royal authority collapsed and war raged. Mason became a delegate at the Revolutionary Convention, Virginia's only functional government. It was to be a momentous convention. John Adams expressed the prevailing opinion in a letter to Patrick Henry. He wrote, we all look up to Virginia for examples. Even before Mason's arrival, the convention had instructed Virginia's representatives to the Continental Congress to propose independence. At the same time, it had established a committee to prepare a constitution for a permanent state government. But the committee's first order of business was to draft the Declaration of Rights. As soon as Mason was seated, he became part of this committee. Randolph describes what followed. A very large committee was nominated to prepare the proper instruments and many projects of a Bill of Rights and Constitution discovered the ardor for political notice rather than a rightness in political wisdom. That proposed by George Mason swallowed up all the rest by fixing the grounds and plan which, after great discussion and correction, were finally ratified. In the formation of this Bill of Rights, two objects were contemplated. One that the legislature should not, in their acts, violate any of those canons. The other that in all the revolutions of time of human opinion and of government, a perpetual standard should be erected, around which the people might rally. And by a notorious record, be forever admonished to be watchful, firm and virtuous. The Virginia Declaration of Rights contains sixteen articles. The first three propound that a general abstract theory of government. The Virginia Declaration was clearly influenced by the Declaration of Independence. Here is the Virginia Declaration. Article one, that all men are by nature equally free and independent and have certain inherent rights of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity, namely, the enjoyment of life and liberty with the means of acquiring and possessing property and pursuing and obtaining happiness and safety. The Virginia Declaration of Rights goes on to provide details on a proper republican form of government. These include no hereditary offices, a separation of powers and the legislative, executive and judicial branches, free and frequent elections, and rotation in office. Not until the eighth article do we reach the kind of protection that has come to be associated with a Bill of Rights. Article eight, that in all capital or criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his viscinage without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself. That no man be deprived of his liberty except by the law of the land or the judgment of his peers. The next articles continue in the same vein, using language that reappeared in the Constitution's Bill of Rights. Article nine, that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Article ten, that general warrants, whereby any officer or messenger may be commanded, to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence are grievous and oppressive and ought not to be granted. Article eleven, that in controversies respecting property and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred. Article twelve deals with a natural right that Americans considered crucial. Article twelve, that the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments. Article thirteen, that a well-regulated militia composed of the body of the people trained to arms is the proper, natural and safe defense of a free state, that standing armies in time of peace should be avoided as dangerous to liberty, and that in all cases the military should be under strict subordination to and governed by the civil power. James Madison, then a political novice, helped to formulate the sixteenth and final article concerning a controversial point in Virginia's history, freedom of religion. Article sixteen, that religion or the duty which we owe to our creator and the manner of discharging it can be directed only by reason and conviction, not by force or violence. And therefore all men are equally entitled to the free exercise of religion according to the dictates of conscience, and that it is the mutual duty of all to practice Christian forbearance, love and charity towards each other. A ringing statement of radical political theory, a brief outline for a republican constitution, a comprehensive list of natural and civil liberties, the Virginia Declaration of Rights was all these things. Indeed it was a seminal and representative document of the American Revolution. Mason subsequently remarked upon this document which owed so much to him. This is the first thing of the kind upon the continent and has been closely imitated by all the other states. We have laid our new government upon a broad foundation and have endeavored to provide the most effectual securities for the essential rights of human nature, both in civil and religious liberty. Within a year four more of the former colonies, Pennsylvania, Delaware, Maryland and North Carolina, opened their state constitutions with declarations of rights similar to that of Virginia. Connecticut and Rhode Island had been self-governing and continued operating under their colonial charters. Nevertheless, Connecticut prefaced the re-enactment of its charter with a brief new declaration of rights. One state that had not been a separate colony and would not enter the union until 1791 was Vermont. Its bill of rights was the first to outlaw slavery. Four states, New Jersey, Georgia, New York and South Carolina, did not adopt separate declarations of rights. Instead, they sprinkled protections of natural and civil rights throughout the body of their new constitutions. The first proposed state constitution from Massachusetts was overwhelmingly rejected because it lacked a bill of rights. Only with such a declaration written primarily by John Adams did the Massachusetts voters accept the constitution in 1780. When New Hampshire replaced its interim constitution with a permanent one in 1783, the number of states boasting distinct declarations of rights rose to nine. The first state declarations had heartily embraced the president set by Virginia. George Mason was 62 when he emerged from political retirement to represent Virginia at the Constitutional Convention. The author of the Virginia Declaration of Rights and of the Virginia State Constitution journeyed 140 miles to Philadelphia. It was the farthest he had ever ventured from the seclusion of his Potomac Plantation. Initially sympathetic to a stronger central government, Mason sat through the proceedings in Philadelphia during the hot summer months with growing unease. Most of the major compromises had been worked out. Then in late August, a South Carolina delegate submitted a list of proposals providing the basis for a bill of rights. These proposals were sidetracked to a committee which ignored them. Peace meal guarantees were then added to the Constitution. Prohibitions against expost facto laws and bills of attainder found their way into one section. A ban on religious tests for holding office ended up in another. Finally, a motion to extend the right of jury trial from criminal to civil cases brought Mason to his feet. Madison's Convention Journal gives a dry and sketchy description. Colonel Mason perceived the difficulty. The jury cases cannot be specified. A general principle laid down on this and some other points would be sufficient. He wished the plan had been prefaced with a bill of rights and would second a motion if made for that purpose. It would give great quiet to the people. And with the aid of the state declarations, a bill might be prepared in a few hours. Mr. Jerry concurred in the idea and moved for a committee to prepare a bill of rights. Colonel Mason seconded the motion. Mr. Sherman was for securing the rights of the people were requisite. The state declaration of rights are not repealed by this constitution and being enforced are sufficient. There are many cases where juries are proper which cannot be discriminated. The legislature may be safely trusted. Colonel Mason responded that the laws of the US are to be paramount to state bills of right. The motion to adopt amendments was then put to a vote. Every state present rejected it. Its delegates already had decided that their work was almost complete. Two days later, an attempt was made to include freedom of speech in the constitution. A hasty majority voted even that proposal down. Within a week, the convention closed. The constitution was laid before the existing Congress, authorized under the Articles of Confederation. Here Richard Henry Lee, a Virginia, endeavored to add a bill of rights before the constitution was passed along to the states for consideration. This effort was for naught. Meanwhile, Mason announced that he would sooner chop off his right hand and sign the constitution without a bill of rights. Mason became a leading anti-Federalist. Of course, he had other objections to the constitution, but those were not necessarily the same objections of many other anti-Federalists around the country. The insistence upon a bill of rights was their most popular argument. Once it was natural for the framers of the constitution to overlook a bill of rights. After all, the Articles of Confederation had included none. The Articles, however, provided for a very different kind of central government. The second article of Confederation ensured state supremacy. Each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this Confederation expressly delegated to the United States in Congress assembled. Consequently, state declarations of rights still operated under the Articles. The Constitution, on the other hand, had no similar provision. Instead, it ensured its own supremacy, anything in the state constitutions to the contrary notwithstanding. The definitive Federalist justification for omitting a bill of rights from the Constitution was penned by Alexander Hamilton. In the Federalist papers, he summarized arguments that various proponents of the Constitution often employed. First, he pointed out that the Constitution already protects certain rights. The most considerable of these remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the states are in a similar predicament. I add that New York is of this number. And yet, the opposers of the new system in this state, who profess an unlimited admiration for its Constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege that though the Constitution of New York has no bill of rights prefixed to it, yet it contains in the body of it various provisions in favor of particular privileges and rights, which in substance amount to the same thing. I answer that the Constitution proposed by the convention contains as well as the Constitution of this state a number of such provisions. Hamilton then listed those provisions. His most ingenious defense, however, rested upon the supposition that the Constitution creates a government of enumerated powers. That is, it can exercise only those powers delegated to it, the people retain the rest. Thus a bill of rights is superfluous or worse. I go further and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted, and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power, but it is evident that it would furnish to men disposed to usurp a plausible pretense for claiming that power. Other Federalists pushed this point further by arguing that a great many rights could not be all enumerated. Doing so would imply that everything that is not enumerated is presumed to be given. Thus an imperfect enumeration would throw all implied power into the scale of the government. Clearly these Federalist justifications contradicted one another. If a bill of rights was positively harmful, why did the Constitution have a brief bill of rights? An astute anti-Federalist remarked on this contradiction early in the Pennsylvania State Ratifying Convention. No satisfactory reason has yet been offered for the omission of a bill of rights, but on the contrary the honorable members are defeated in the only pretext which they have been able to assign, that everything which is not given is accepted. For we have shown that there are two articles expressly reserved, the writ of habeas corpus and the trial by jury and criminal cases. And we have called upon them in vain to reconcile this reservation with the tenor of their favorite proposition. For if there was danger in the attempt to enumerate the liberties of the people, lest it should prove imperfect and destructive. How happens it that in the instances I have mentioned that danger has been incurred? Have the people no other rights worth their attention? Or is it to be inferred agreeably to the maxim of our opponents that every other right is abandoned? Anti-Federalists hammered this contradiction home over and over again. Federalists never offered a plausible answer, and as the ratification struggle dragged on, the attack had a telling effect. Pennsylvania was the second state to approve the Constitution. A minority at the ratifying convention drew up a proposed bill of rights which circulated widely throughout the other states. By the time the Constitution was being considered by Massachusetts, the Federalists themselves have been forced to draw up a series of recommended amendments in order to get the Constitution ratified. The ratification struggle was most fierce in Virginia and in New York. Federalists battled to avoid making Virginia's ratification conditional upon acceptance of amendments. The Virginia convention recommended some 40 amendments, the first 20 being largely a copy of the Virginia Declaration of Rights. In New York, the Federalists accepted not only a full slate to propose amendments, but also a circular letter calling for a second constitutional convention to frame the necessary amendments. Overall, five states coupled their ratifications with recommended amendments. In two other states, amendments were issued by the minority delegates. North Carolina refused to ratify it all without a bill of rights. Rhode Island rejected the Constitution with or without such a bill. Some proposed amendments went far beyond a simple bill of rights and demanded drastic alterations in the Constitution. But every state that offered amendments included at least one that found its way into the Federal Bill of Rights. Only by surrendering to this demand were the Federalists able to secure ratification. The task of translating these more than 200 state proposals into the Constitution fell upon James Madison. Historians often call Madison the father of the Bill of Rights rather than the father of the Constitution. Yet at first glance, Madison must have appeared to be singularly inappropriate for this role. True, it served with Mason on the committee that framed the Virginia Declaration of Rights. But he had gone on to become a prominent nationalist and an ardent supporter of the Constitution. He'd even coauthored the influencer work, the Federalist Papers. On the floor of the Virginia Ratifying Convention, Madison had opposed a bill of rights as dangerous, arguing along the usual Federalist line. But two things changed his mind. First, there was his correspondence with Thomas Jefferson. After Jefferson first saw the Constitution, he wrote to Madison from France, decrying the omission of a Bill of Rights. Through a series of letters, Jefferson gradually converted Madison. Three months after the Virginia Ratifying Convention, Madison wrote to Jefferson and stretched the truth a bit. He claimed never to have opposed a Bill of Rights that adamantly. My own opinion has always been in favor of a Bill of Rights, provided it be so framed as not to imply powers, not meant to be included in the enumeration. At the same time, I have never thought the omission a material defect. I have not viewed it in an important light. One, because I conceive that in a certain degree, the rights in question are reserved by the manner in which the Federal powers are granted. Two, because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. Three, because the limited powers of the Federal government and the jealousy of the subordinate governments afford a security which has not existed in the case of the state governments and exists in no other. Four, because experience proves the inefficiency of a Bill of Rights on those occasions when its control is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every state. The second thing to change Madison's mind was political reality, even with suggested amendments. Virginia ratified by only a slim majority. The Virginia anti-Federalists were still so politically powerful that they subsequently gained control of the state legislature. Although Madison ran for the Senate, Patrick Henry was able to engineer his defeat because of Madison's Federalist background. Instead, two anti-Federalists were sent to the first Senate. One of them was Richard Henry Lee. Madison then ran for the House of Representatives. Again, he was almost defeated by the anti-Federalist candidate and other Virginia's many future presidents, James Monroe. Madison just barely won and only by making an ironclad promise to support a Bill of Rights. In other words, a happy coincidence of conviction and expediency made Madison the strongest advocate of a Bill of Rights within the new government. But being a Federalist who advocated a Bill of Rights was an awkward position. He found himself harried from both sides. The anti-Federalists wanted to amend the Constitution, not through Congress, but through a second convention that would have the power to make drastic revisions and strip the central government of many new powers. Unable to defeat the Constitution outright, the anti-Federalists now pinned their hopes on a second convention that would undo the work of the first. In particular, the anti-Federalists wanted to curb the national-powered attacks and change proposed unanimously by the various states. Most opponents of the Constitution were willing to grant the sole power to collect import duties to the central government. All internal taxes, however, were to be at the discretion of the state governments. Madison also encountered resistance from Federalists. Their new government was safely in operation and they were perfectly prepared to renege on their solemn promises to amend the Constitution. One Federalist congressman from Massachusetts scornfully reacted to Madison's proposed amendments. Mr. Madison has introduced his long-expected amendments. They are the fruit of much labor and research. He has hunted up all the grievances and complaints of newspapers, all the articles of conventions, and the small talk of their debates. There is too much of it. Upon the whole, it may do some good towards quieting men who attend to sounds only and may get the mover some popularity, which he wishes. Madison realized that the popular demand for bill of rights must be fulfilled. Virginia already had endorsed New York's call for a second constitutional convention as had the two states still outside the Union, North Carolina and Rhode Island. If Congress could approve a safe bill of rights without weakening the national government, it would preempt the drive for a second constitutional convention. Otherwise, the anti-Federalists might yet be ultimately victorious. May 14th, 1789, Madison announced to Congress that he would introduce amendments. Congress, however, was busy setting up the new government. Five weeks passed before Madison could submit his amendments. Although privately complaining about the nauseous project of amendments, he made an impassioned and public defense of them, repeating some of the arguments Jefferson had used on him. One of the most original of them encouraged the enforcement of a bill of rights through judicial review. This check upon government was just emerging on the American scene and was not fully anticipated by the Constitution's framers. It has been said that it is unnecessary to load the Constitution with a bill of rights because it was not found effectual in the Constitution of the particular states. It is true there are few particular states in which some of the most valuable articles have not, at one time or other, been violated. But it does not follow, but that they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights. They will be an impenetrable bulwark against every assumption of power in the legislative or executive. They will be naturally led to resist every encroachment upon rights, expressly stipulated for in the Constitution by the Declaration of Rights. Every congressman has spoke after Madison either opposed the amendments or argued that Congress had more important business. Six weeks passed before the House considered the amendments again and then only to refer them to a committee. Madison was one of 11 committee members. Its report made minor alterations in Madison's initial proposals. Congress then tabled the matter. Finally, on August 13th, the House began to debate the amendments. The 10-day debate made a few significant changes. One involved where to put the amendments within the Constitution. Madison had proposed inserting them individually right into the body of the document in the appropriate places. Some more ardent federalists preferred to locate all the amendments at the end of the Constitution. By this, they hoped to downgrade the importance of the amendments. Madison strongly objected, but this revision carried. The Bill of Rights thus became a separate constitutional unit. Meanwhile, the anti-federalists within the House tried to broaden the debate. Madison carefully eliminated any state proposals that might endanger the beauty of the government. The anti-federalists announced them as little better than whip, syllabub, frothy and full of wind, formed only to please the palette. Even Jefferson felt that Madison's amendments did not go far enough. An anti-federalist made a motion to consider all the amendments proposed by ratifying states. This was decisively rejected, as were all other attempts to expand the scope of the amendments. The widely publicized amendments pacified many anti-federalists. North Carolina immediately ratified. After a short interval, Rhode Island followed. George Mason, the anti-federalist who said he would sooner chop off his hand than sign the Constitution, was initially suspicious. But when he saw the amendments, Mason was pleasantly surprised. I have received much satisfaction from the amendments to the Federal Constitution, which have lately passed the House of Representatives. I hope they will also pass the Senate. With two or three further amendments, I could cheerfully put my hand and heart to the new government. Less than a year after the amendments left Congress, nine states had ratified all but two of the 12 amendments. One state more was required before the amendments became part of the Constitution. The final state necessary would take another year and a half. As soon as Vermont entered the Union in 1791, it ratified the amendments. But the total number of states had increased. One more ratification was still required. Of the four holdout states, two, Georgia and Connecticut, were controlled by extreme federalists who thought any amendments were premature. In the third state, Massachusetts, anti-federalists wanted an amendment limiting taxation. They used the legal technicality to prevent passage of the Bill of Rights. Appropriately Virginia, home of the first state declaration of rights, became the fourth and last battleground of the federal Bill of Rights. Richard Henry Lee could not hide his disappointment at the amendments proposed to the Virginia legislature. Sir, we have now the honor of enclosing the proposition of amendments to the Constitution of the United States that has been finally agreed upon by Congress. We can assure you, sir, that nothing on our part has been omitted to procure the success of those radical amendments proposed by the Virginia Convention. The Journal of the Senate herewith transmitted will at once show exact and how unfortunate we have been in this business. It is impossible for us not to see the necessary tendency to consolidate empire in the natural operation of the Constitution, if not further amended than as now proposed. And it is equally impossible for us not to be apprehensive for civil liberty. The amendments sailed through Virginia's lower house, which was one of the first in the country to consider them. But in the upper house, diehard anti-Federalists rejected the amendments by a single vote, believing that adoption would be an obstacle to the chief object of their pursuit, the amendment on the subject of taxation. The upper house held firm for almost two years. But in December of 1791, it caved into public opinion. Virginia became the last state to ratify the Bill of Rights, finally putting the document into force. Jefferson, serving as Washington Secretary of State, issued the official announcement of this ratification. To Lafayette, his friend back in France, he reported on its healing effect. The opposition to our new Constitution has almost totally disappeared. Some few indeed had gone such links in their declarations of hostility that they feel it awkward perhaps to come over. But the amendments proposed by Congress have brought over almost all their followers. The Bill of Rights is a list of restraints upon government. Americans who experienced the revolution believe that, however necessary government may or may not be, it remained the greatest danger to liberty. The people demanded a limited government, with even the rights of minorities secured from majorities. Madison made this very clear when he introduced his amendments on the house floor. But whatever may be the form, which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government by accepting out of the grant of power those cases in which the government ought not to act or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and in some cases against the community itself, or in other words, against the majority in favor of the minority. In short, the Bill of Rights is the ultimate expression of the American revolutionary struggle to limit the power of the state. But examining the Bill of Rights raises a startling anomaly. Surprisingly little is known about the specific intended meaning of these first 10 amendments, especially in contrast to what is known about the Constitution. The Constitutional Convention and some of the state ratifying conventions kept fairly complete records of the Constitution. There are no records of the state debates on the Bill of Rights, nor are the records of the Senate debate because the Senate met in secret until 1794. Even transcripts of the House debates are not thorough. The annals of Congress for that period were compiled essentially from newspaper accounts and are not always complete or accurate. Consequently, much of the history of the Bill of Rights remains a mystery, subject to speculation and controversy. Moreover, Americans at that time did not anticipate the future scope of judicial review. They had no concept of the sea of litigation which would subject almost every phrase of the Bill of Rights to minute examination and acrimonious debate. In fact, some Federalists viewed the Bill of Rights as useless, verbiage, serving only to placate the Constitution's opponents. Enough is known, however, to draw the same distinction as with the Magna Carta. There is the Historical Bill of Rights and the Mythical or Evolving Bill of Rights. The Mythical Bill of Rights as the document is currently interpreted. It is the result of changing conditions and changing concerns over two centuries. In some cases, this Mythical Bill of Rights expands upon the meaning of the original Historical Bill of Rights with some guarantees of freedom being eroded over time. Congress reported 17 amendments to the Senate. The Senate rejected a few and rearranged the others, reducing the total to 12. A joint committee, again with Madison as a member, resolved the differences between the two houses. On September 25th, 1789, the amendments were sent to the states for ratification. For reasons unknown, the first two of the 12 amendments were passed by Congress, but not ratified by the states. These two amendments, however, may have been inappropriate for a Bill of Rights. State ratifying conventions often requested more than a Bill of Rights. Of all these other requests, Madison felt that the Constitution could safely accommodate two. The first unratified amendment regulated the size of the house to prevent it from becoming either too distant from the people or too unwieldy. The second unratified amendment put a small check on the ability of Congress to determine its own pay. These two amendments took up more time in the house than any of Madison's other proposals. The defeated amendments may seem trivial today, but they testified to the unwillingness of those Americans to trust anything to government discretion. The first amendment is perhaps the most important and the most controversial part to the Bill of Rights. Article One. 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 two features of this amendment. First, it's emphatic language. Congress shall make no law. This unqualified command contrasts with the much looser phrasing of similar provisions within earlier documents. Second, the amendment is aimed specifically at Congress. In other words, it was written to affect only the national government and not the state governments. Madison's original proposals included an amendment aimed at state governments, an amendment which he called the most valuable in the whole list. No state shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech or of the press. This proposed amendment passed the House but was rejected by the Senate. Thus, nothing in the Bill of Rights extended any first amendment restraints to the state governments. Not until 1925 did the Supreme Court apply the first amendment to the states as well. The first sentence of this amendment addresses religious freedom, a cause close to Madison's heart. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The meaning of the second clause of this sentence, which protects the free exercise of religion, is fairly clear. But the words establishment of religion in the first clause had a specific 18th century meaning which has been obscured. It did not refer to just any church or any private religious organization. An establishment of religion was a state church sanctioned by law and supported by taxation. By prohibiting any law as respecting this, the first amendment prevented Congress from creating a national church. It did something else. It protected state churches from interference by the national government. The established Church of Britain, the Church of England, had been adopted by several of the American colonies, including Virginia. After the American Revolution, these colonies, now states, generally disestablished the Church of England. But the New England colonies had officially sanctioned the Puritan denomination, congregationalism. These states chose not to disestablish. The first amendment consequently protected them from congressional interference. There is still dispute over how far the establishment clause was meant to be taken at the national level. A broad interpretation claims that the establishment clause was designed in Jefferson's words to erect a wall of separation between church and state. Congress could not enact any law that promoted religion. A narrower interpretation claims it was designed only to prevent Congress from creating a national religion. Congress could, however, enact laws that generally favored religion. Justice Joseph Story, appointed to the Supreme Court under Madison's presidency, endorsed this narrow interpretation. Probably at the time of the adoption of the amendment, the general, if not universal sentiment in America, was that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience and the freedom of religious worship. The real object of the amendment was not to countenance, much less to advance Mohammedanism or Judaism or infidelity by prostrating Christianity, but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which should give to an hierarchy the exclusive patronage of the national government. The evidence is too fragmentary to determine which interpretation was anticipated at the adoption of the First Amendment. At several points, however, Congress did reject wording that would have made a narrow interpretation explicit. For instance, the Senate voted down the following wording. Congress shall make no law establishing one religious sect or society in preference to others. Madison favored the broader interpretation. In later life, he denounced even minor government actions supporting religion. Is the appointment of chaplains to the two houses of Congress consistent with the Constitution and with the pure principle of religious freedom? In strictness, the answer on both points must be in the negative. The law appointing chaplains establishes a religious worship for the national representatives to be performed by ministers of religion and these are to be paid out of the national taxes. If religion consists in voluntary acts of individuals, singly or voluntarily associated, and it be proper that public functionaries as well as their constituents should discharge their religious duties, let them like their constituents, do so at their own expense. The behavior of early Congresses and presidents, however, implicitly favored a narrow interpretation. They appointed government chaplains at taxpayers' expense, whereas a broad interpretation of the First Amendment's religious clauses may have been intended by its framers. A broad interpretation of freedom of speech in the press almost certainly was not. Most Americans opposed any prior constraints upon the spoken and written word, but the common law contained a crime known as seditious libel. This made any malicious or contemptuous criticism of the government subject to subsequent punishment. No one suggested that the First Amendment prevented prosecutions for seditious libel until the famous Sedition Act eight years after the adoption of the Bill of Rights. If the protections within the First Amendment have broadened over time, those within the Second Amendment have not. The amendment's curious wording must carry some of the responsibility. Article two, a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Note that this amendment's wording, unlike the First Amendment, is in the passive voice. This sets the pattern for subsequent amendments. The First Amendment tells Congress what it cannot do. The next eight amendments tell what cannot be done without stating who was being restricted. This might suggest that the Second and Subsequent Amendments were intended to restrict both the state and national governments. When Congress decided to group the amendments at the end of the Constitution, they probably were meant to apply only to the national government. In Madison's original proposals, the Second and Subsequent Amendments would have been located within the body of the Constitution at a point where their application only to Congress would have been apparent. A mystery remains. The First Amendment originally was in the passive voice. The House changed it to the active voice to clarify its meaning. Why then did Congress neglect to reword the other amendments? Historians can only speculate. Another peculiarity in the Second Amendment is the opening clause referring to the militia, a well-regulated militia being necessary to the security of a free state. Why did Madison thus preface the right to bear arms? One interpretation suggests that the Second Amendment did not protect an individual right to bear arms, but only the collective right that applies to the state national guards. However, because of the nature of militias in that age, the distinction between individuals and collective militias is difficult to make. Only after the War of 1812 did the militia, or national guard, undergo a dramatic transformation from a compulsory to a voluntary system. The militia of Madison's day was a compulsory and universal institution. Generally, every able-bodied male between 16 and 60 was enrolled and had to serve if called. Therefore, when the Second Amendment was adopted, the distinction between an individual right to bear arms and a collective right would have been meaningless. This is apparent in Madison's proposal as it first passed the House. A well-regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed. But no one religiously scrupulous of bearing arms shall be compelled to render military service in person. The Senate struck out this protection for conscientious objectors, but its initial inclusion underscores the compulsory and universal nature of the early militia. Furthermore, the Senate refused to restrict the right to bear arms to those situations of common defense. Hence, they may have intended an individual right to bear arms. Remember, Americans in Madison's day viewed the militia as an alternative to and a safeguard against a standing army. A standing army is a military force composed of professional soldiers continuously at the government's disposal. The militia was the vast body of part-time citizen soldiers on call for all emergencies. The deep-rooted suspicion of militarism found expression in the Third Amendment as well. Article III, no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. Permitting armies to live off the people through foraging, impressive supplies, and forced quartering was an important way that governments had kept their military expenditures down. The Third Amendment was one way of maintaining the principle of civil supremacy over the military. Six of the states requested a specific amendment similar to the provision within the Virginia Declaration of Rights, restricting the national government's power to maintain any standing army during peacetime. One proposal offered in the Senate read, that standing armies, in time of peace, being dangerous to liberty, should be avoided as far as circumstances and protection of the community will admit, and that in all cases, the military should be under strict subordination too and governed by the civil power. That no standing army or regular troops shall be raised in time of peace without the consent of two-thirds of the members present in both houses, and that no soldier shall be enlisted for any longer term than the continuance of the war. Madison and the other Federalists thought such a restriction on the national government was unacceptable, and so made sure there was no amendment to that effect. So far, most of the prohibitions within the Bill of Rights have involved natural rights. According to the radical Republican ideology that prevailed then, these were the pre-existing rights that people enjoy in a state of nature before forming a government. Some natural rights were alienated in the process of forming a government, but most were retained by the people. The Fourth Amendment through to the Eighth Amendment introduced procedural rights. These rights do not exist in a state of nature but come into existence after the people form a government. They restrict the procedures by which the government may enforce its laws. Madison drew this distinction between natural rights and procedural rights when he introduced his amendments. In some instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right but a right resulting from a social compact which regulates the action of the community but is as essential to secure the liberty of the people as any of the pre-existing rights of nature. Many procedural rights within the Bill of Rights were already well established in common law as enforced by American courts, but the common law could be overridden by legislative statute. Placing the procedural rights of the common law within the Constitution put them beyond the reach of the legislature. The first of the primarily procedural amendments, the Fourth Amendment, limits the means by which the national government may gather evidence. It precluded the general search warrants with which British authorities had tried to suppress smuggling among the American colonists. With these general rits of assistance, as they were called, British customs officials have been able to break into and seize the property of merchants virtually at their own discretion. The Fourth Amendment prevents this. Article four, the right of the people to be secure in their persons, houses, papers, and defects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the person or things to be seized. The exclusionary rule, which utterly forbids the use of illegally obtained evidence in court, is an early 20th century expansion of the Fourth Amendment's protection. Under the common law at the time of the amendment, illegally obtained evidence could still be used in court to convict the defendant. The controversial Fifth Amendment consists of a miscellaneous compilation of five guarantees. Article five, no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger. Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. Nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law. Nor shall private property be taken for public use without due process of law. Nor shall private property be taken for public use without just compensation. Two of the five guarantees have been subjected to special scrutiny, to repeat. Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb. Nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law. In general, the right against self-incrimination can be viewed as a natural rather than a procedural right. It is a parallel to the natural right of free speech in the First Amendment. The First Amendment prohibits the government from forcing citizens not to speak. The Fifth Amendment prohibits it from forcing them to speak. At the time the Constitution was adopted, a defendant was forbidden from testifying at all in his own criminal trial, whether for or against himself. This absolute prescription did not relax until after the Civil War. The Fifth Amendment's due process clause is undoubtedly the vaguest within the Bill of Rights, if not within the entire Constitution. The phrase due process of law is derived historically from the phrase law of the land in the Magna Carta. If interpreted narrowly, it becomes a redundant part of the Constitution. If interpreted broadly, it gives the Supreme Court discretional authority over legislative acts. The Sixth Amendment specifies procedural rights for the criminally accused. Article III of the original Constitution provided for jury trial in criminal cases, but many felt this protection needed to be spelled out in greater detail. Article VI, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. A frequent objection to the jury trial clause within the original Constitution was that it applied only to criminal cases. Therefore, the Seventh Amendment extended this protection to civil cases as well. In addition, several states wanted to restrict the review powers of national courts. One such restriction appears in the Seventh Amendment, the only limitation upon the review powers of the national court that found its way into the Bill of Rights. It prevents the national courts from overturning a jury's decision about the facts of a case. Article VII, in suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law. The last of the procedural amendments, the Eighth Amendment, deals with bail and punishment. Article VIII, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. The Ninth Amendment can only be appreciated within the context of the debate over a Bill of Rights. Remember Federalists argued that a Bill of Rights implied that the national government possessed any rights not enumerated. Through the Ninth Amendment, Madison guarded against the danger he himself had pointed out. Article IX, the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. The final intent of the amendment was the only part of the Bill of Rights universally requested by every state that requested any amendments. Yet it may be argued that it does not belong in the Bill of Rights. Rather than offer protection to private citizens against government as to all the other nine amendments, the Tenth Amendment defines the relationship between two levels of government, the national and the state. Article X, the power is not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people. During the ratification debates, Federalists had stressed that the Constitution established a government of enumerated powers only. It did not abolish state governments as some fervid anti-Federalists charged. The states continued to exercise every power not granted to the national government. The Tenth Amendment made this explicit. Advocates of states' rights have religiously cited the Tenth Amendment since its adoption. Although it is similar to the Articles of Confederation, this amendment's differences are more crucial. The articles guaranteed each state its sovereignty, freedom, and independence. The Tenth Amendment does not. Moreover, the articles provided that states retained all powers not expressly delegated to the central government. The Tenth Amendment omits the word expressly. Indeed, anti-Federalists within the House and the Senate tried to add the word expressly to the Tenth Amendment several times, but they always were voted down. How much does the Tenth Amendment actually further states' rights? This depends upon how much power the Constitution grants to the national government. If the Constitution is interpreted as granting extensive authority, then the Tenth Amendment further states' rights very little, as just a story explained. It is plain that it could not have been the intention of the framers of this amendment to give it effect as an abridgment of any of the powers granted under the Constitution, whether they are express or implied, direct or incidental. Its sole design is to exclude any interpretation by which other powers should be assumed beyond those which are granted. All that are granted in the original instrument, whether express or implied, whether direct or incidental, are left in their original state. In short, Madison worded the Tenth Amendment carefully to calm opponents of the Constitution without detracting from the power of the national government. But on a deeper, more subtle level, the Tenth Amendment had greater impact. The Constitution was a consensus document. Different framers had different concepts of the ideal centralized government. To get the Constitution ratified, they had to compromise. The ideal of Madison and of many ardent federalists was a truly consolidated government. The states would be mere subordinate units like counties and other local governments within the states. The Articles of Confederation had left the states completely sovereign. Some federalists had wanted the central government to be completely sovereign. Consider the following personal correspondence from the extreme federalist, General Henry Knox, to the more moderate, George Washington, written during the Constitutional ratification debates. Although I frankly confess that the existence of the state governments is an insuprable evil from a national point of view, yet I do not well see how in this stage of the business they could be annihilated. By the time the federalists publicly defended the Constitution, however, they were forced vigorously to deny that it would subordinate the states. They argued instead that it created a division of powers between the state government and the central government, each remaining sovereign in its own realm. The federalists used this argument because they realized most anti-federalists favored, at least in theory, a system of divided powers. Few anti-federalists defended the complete state sovereignty granted by the Articles of Confederation. Most were willing to give central government enough power to make it independent of state governments. They simply were unwilling to see states totally submerged. In other words, the federalism of the United States government with this division of sovereign powers between the national and state governments was not the intention of the Constitutional Convention. It was a concession that anti-federalists wrenched from the federalists during the ratification struggle. And the Tenth Amendment, despite its weak wording, symbolized that concession. In this respect, the Tenth Amendment was a major anti-federalist victory. To oversimplify, the federalists desired the Constitution and it was ratified. The anti-federalists, through the Bill of Rights, were able to determine to some degree how that Constitution would be interpreted. Thus the Constitution did not bring into operation a fully national system, but a truly federal one. Through the Bill of Rights, the Constitution became in practice at least until the Civil War, as much an anti-federalist document as a federalist document. How the Constitution would weather a Civil War, the Great Depression, and two World Wars was yet to be seen. Article Five of the Constitution of the United States. The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes as part of this Constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof. Since ratification of the Bill of Rights in 1791, the Constitution has been amended a mere 16 times, yet several thousand amendments have been formally proposed in Congress or in the state legislatures. The amendment process specified in Article Five has clearly fulfilled the role intended by the founding fathers. It is rigid enough to prevent frequent modifications, yet flexible enough to accommodate changing circumstances and ideas. Joseph Story, an early justice of the Supreme Court, eloquently stated the situation. It is wise in every government, and especially in a republic, to provide means for altering and improving the fabric of government as time and experience, or the new phases of human affairs may render proper to promote the happiness and safety of the people. The great principle to be sought is to make the changes practicable, but not too easy, to secure due deliberation and caution, and to follow experience rather than to open away for experiments suggested by mere speculation or theory. Article Five provides two ways to propose an amendment and two ways to ratify one. Of the two ways to propose an amendment, only one, passage by two-thirds of both houses of Congress, has ever been utilized. Of the two ways to ratify an amendment, ratification by special conventions within three-fourths of the states has been used only once for the 21st Amendment. All other amendments have been ratified by the legislatures of three-fourths of the states. The 16 amendments ratified since the Bill of Rights vary widely in their significance. To gain an overview, it's useful to classify these amendments either by time period or by content. If classified by time, the amendments might appear sporadic. The first two were added prior to 1805 when the Constitution was being implemented. Then followed 60 years with no new amendments. Then followed a civil war. As an aftermath of the conflict came three important additions to the Constitution. The 13th, 14th, and 15th Amendments. These were the last additions until the turn of the 20th century. Thus more than two-thirds of these 16 amendments were produced in the second hundred years of the Constitution. Four were ratified either in 1913, the year before World War I, or in 1920, the year just after. The 20th and 21st Amendments were added in 1933 in the midst of the Great Depression. The remaining five were added sporadically after World War II. If classified by content, six of the amendments may be considered structural. That is, they alter operational features of the national government, such as how the president is elected or who succeeds him upon vacancy of that office. Of the non-structural amendments, five of them deal with suffrage, granting the vote to such groups as blacks, women, and 18-year-olds. Two more relate to alcohol, one prohibiting it, and one repealing that prohibition. The three remaining non-structural amendments address slavery, the rights of citizens, and the income tax. To consider the amendments individually, it is necessary to refer back to the Bill of Rights. The 11th Amendment follows directly from the 10th and last amendment in the Bill of Rights. This promotes decentralization. Article 10, the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people. The 11th Amendment followed this decentralizing tradition, ratified in 1798, seven years after the Bill of Rights, it restricted the Supreme Court's authority over the states. Article 11, 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. The 12th Amendment also was structural in design. In 1796, voters were treated to a perplexing site. The winning of presidential and vice presidential candidates came from different political parties. This threatened a political deadlock. In 1800, the election had to be thrown into the House of Representatives for resolution. Thus, the 12th Amendment, ratified in 1804, called for electors to vote separately for presidential and vice presidential candidates to make it less likely that they would come from competing parties. With these structural additions, the amendment process was dormant until one event which altered America forever, the Civil War. In 1861, the southern states attempted to secede from the Union. The subsequent war between the states brought momentous constitutional changes. The long-standing debate over the nature of the Union, a debate as old as the Constitution itself, was settled forever. Secession was crushed. And in the north as well as the south, the national government swelled in size and authority at the expense of state governments. Equally significant, slavery, the labor system which had flourished and been treasured as the economic mainstay of half the country, was rooted out. The 13th, 14th, and 15th Amendments, all aimed at protecting black men, went aftermath of the Civil War. The Constitution originally had sanctioned slavery. Yet the Massachusetts ratified debates during 1787. One delegate had denounced the rule which defined a black man as three-fifths of a white man for purposes of taxation and representation. Oh, liberty, thou greatest good, thou fairest property, with thee I wish to live, with thee I wish to die. Pardon me if I drop a tear on the peril to which she is exposed. I cannot, sir, see this brightest of jewels tarnished, and shall we part with it so soon? Oh, no. The abolition of slavery finally was enshrined in the Constitution through ratification of the 13th Amendment in 1865. Ironically, the abolition of slavery was not a northern goal at the beginning of the war. Indeed, the originally proposed 13th Amendment would have constitutionally protected slavery within the states and would have been unamendable. This amendment was submitted by a Republican Congress at the suggestion of the recently inaugurated President Abraham Lincoln. Lincoln desperately wished to persuade the South against secession, for although the Republican Party fervently opposed the extension of slavery into the territories, it had no intention of interfering with slavery within the existing states. Lincoln clearly stated why the national government fought the Civil War. My paramount object in this struggle is to save the Union, and is not either to save or destroy slavery. If I could save the Union without freeing any slave, I would do it. And if I could save it by freeing all the slaves, I would do it. And if I could save it by freeing some and leaving others alone, I would also do that. What I do about slavery and the colored race, I do because I believe it helps to save the Union, and what I forbear, I forbear because I do not believe it would help to save the Union. At the outset of the war, Union armies complied with the fugitive slave provision of the Constitution. By this provision, runaway slaves who fled to free states were returned to their Confederate owners. As the fighting dragged on, however, Lincoln realized that to free the slaves would help the war effort. Pressure to do so came from nations abroad, as well as from radicals within the Republican Party, whose numbers and influence were increasing. Thus, in the middle of the war, Lincoln issued his famous Emancipation Proclamation. On the first day of January, in the year of our Lord 1,863, all persons held as slaves within any state or designated part of a state the people were of shall then be in rebellion against the United States, shall be then, dense forward and forever free. On the day it went into effect, the Emancipation Proclamation actually freed no slaves. As a war measure, it only applied to those parts of the South in rebellion. It did not free slaves in those sections of the Confederacy already conquered by Union armies. It did not apply to the four border slave states which had not seceded, Delaware, Maryland, Kentucky, and Missouri. It only freed those slaves completely beyond the reach of Union authority. Nonetheless, the Emancipation Proclamation symbolized the gradual drift of Northern war objectives from the preservation of the Union to include the abolition of slavery. At the time it was issued, Lincoln was strongly urging the border states to emancipate their slaves and compensate former owners. This was the tactic Congress had used to abolish slavery in the District of Columbia. Congress also had passed two confiscation acts which did as much to free slaves belonging to rebels as did the Emancipation Act. But as Union armies steadily penetrated deeper into the South, the Emancipation Proclamation did bring freedom to increasing numbers of slaves. After two more years of bitter fighting, the idea of compensating slave owners became less attractive to Northerners. They looked to a constitutional amendment to fully and permanently eliminate the blight of slavery. In January of 1865, two months before General Lee's surrendered Appomattox ended the Civil War, Congress passed the new proposed 13th Amendment. Section one, 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. The actual ratification of this amendment became inextricably bound up with the future status of these rebellious states. Of course, these states had not been represented in the wartime Congress that passed the amendment. But Lincoln and the Republicans were in a complicated situation. They claimed that the Southern states had not legally left the Union. Therefore, the seceding states still counted toward the total number of states necessary for ratification to occur. This made the creation of loyal state governments in the South especially pressing. The South lay in ruins. Reconstruction is the term used to describe how the seceding states were brought back into the Union. Lincoln, instituting a lenient policy of reconstruction, established new governments by executive order. Most former Confederates could participate in the newly formed government so long as they swore loyalty to the Union. Lincoln also insisted that the new governments abolish slavery. After Lincoln's assassination in April of 1865, his successor, Andrew Johnson, continued the same basic policy. By the first Congress after Lincoln's death, 10 of the 11 former Confederate states had functioning reconstructed governments. All 10 had abolished slavery and all the two had ratified the 13th amendment. These ratifications coupled with those from the North provided the necessary three force vote. On December 18th, 1865, the 13th amendment became part of the Constitution. The abolitionist and poet John Greenleaf Whittier celebrated the event in verse. It is done. In the circuit of the sun shall the sound thereof go forth. It shall bid the sad rejoice. It shall give the dumb a voice. It shall belt with joy the earth. Although the 13th amendment was now assured, the reconstructed governments that ratified it were not. The Republicans in Congress had never been fully satisfied with Lincoln's reconstruction policy. Johnson's new governments appalled them. These governments were riddled with high Confederate officials. The Confederate Brigadier General was Governor of Mississippi. The Confederate Vice President was the United States Senator from Georgia. South Carolina rather than repudiated secession ordinance had merely repealed it. This yielded nothing in principle. And then there was the prospect of Southern leaders uniting with the Northern Democratic Party. Together they might politically defeat the Republicans and undo the gains from the war. Even worse, the new governments had replaced slavery with black codes which relegated black freemen to second-class citizenship. Blacks could not testify against whites in court. They were excluded from juries, voting and holding office. Idle or unemployed blacks were subject to imprisonment or forced labor. Black codes varied from state to state, but in general they denied blacks the right to marry whites, bear arms, or assemble after sunset. An editorial in the Chicago Tribune voiced the outraged reaction of Northerners. We tell the white men of Mississippi that the men of the North will convert the state of Mississippi into a frog pond before they will allow any such laws to disgrace one foot of soil in which the bones of our soldiers sleep and over which the flag of freedom waves. Congress absolutely refused to seat representatives from the reconstructed governments. These governments were now in the anomalous position of being recognized by the president, but not by Congress, of being legitimate for ratification of the 13th Amendment, but not for representation within the national government. Three factions emerged from this impasse. At one extreme was President Johnson. Johnson was from Tennessee, one of the reconstructed states shunned by Congress. He was a southerner who had remained loyal to the Union and a Democrat who joined the Republican ticket. He supported both white supremacy in the South and strict constitutional limitations upon national power. In his third annual message to Congress, Johnson's racial views surfaced. It must be acknowledged that in the progress of nations, Negroes have shown less capacity for government than any other race of people. No independent government of any form has ever been successful in their hands. On the contrary, whenever they have been left to their own devices, they have shown a constant tendency to relapse into barbarism. The great difference between the two races in physical, mental, and moral characteristics will prevent an amalgamation or fusion of them together in one homogeneous mass. Of all the dangers which our nation has yet encountered, none are equal to those which must result from the success of the effort now making to Africanize the southern half of our country. In League with Johnson were a few conservative Republicans, the Northern Democrats, and the leaders of the reconstructed governments. At the other extreme were the radical Republicans. They had twin motives, one negative, one positive. They burned with war and gendered vindictiveness. They were consumed with a passion for full black equality. They wanted to exclude former Confederate officials from participating in government and to force the South to pay off the Union war debt. Political cynics might observe that by giving blacks the vote, radical Republicans could build a viable Republican party in the South. But these reformers sincerely desired social equality and economic justice for blacks. They demanded the confiscation of large plantations so that every freed slave could have 40 acres. To achieve these ends, they were prepared to reduce the South to a conquered province under military rule. The leader of the radical Republicans was Thaddeus Stevens, a congressman from Pennsylvania who lived openly with a black mistress. He bitterly denounced the idea of white supremacy. This is not a white man's government. To say so is political blasphemy for it violates the fundamental principle of our gospel of liberty. This is man's government, the government of all men alike. Every man, no matter what his race or color, has an equal right to justice, honesty and fair play with every other man. And the law should secure him those rights. The same law which condemns or acquits an African should condemn or acquit a white man. The same law which gives a verdict in a white man's favor should give a verdict in a black man's favor on the same state of facts. Such is the law of God and such ought to be the law of man. The largest faction in Congress, however, was neither radical nor conservative. It consisted of moderate Republicans. The moderates shared the radical Republican outrage at the Southern Black Codes. They also shared the desire to extend the Republican Party southward. But they shied away from full political equality for blacks. After all, racism was prevalent in the North as well. Few northern states permitted blacks to vote. In other words, moderate and radical Republicans in Congress agreed about opposing the Reconstruction governments but disagreed about the alternative. Over Johnson's veto, they passed the Civil Rights Act of 1866, which provided the freed slaves with some legal protection from the black codes. And to prevent a future Democratic Congress from repealing it, they incorporated it into the 14th Amendment. Section one. 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. An 1857 ruling of the Supreme Court made necessary the first sentence of the 14th Amendment, which defined citizenship. Dred Scott, a Missouri slave, had been taken by his master to reside in a free state and then in a free territory before returning to Missouri. Scott sued for his freedom. A Southern dominated Supreme Court made two important rulings. First, Congress had no power to outlaw slavery in the territories. This declares a primary plank of the Republican platform to be unconstitutional. Second, a black descended from slaves could never be an American citizen. The 14th Amendment effectively reversed the Dred Scott decision. It also overturned the various Southern and Northern state laws which denied citizenship to blacks. The second sentence of the 14th Amendment requires the states to recognize the privileges or immunities of citizens to adhere to due process and to provide equal protection of the laws. This has become one of the most revolutionary sentences of any constitutional amendment since the Bill of Rights. It was, for example, the basis for the Supreme Court's 1954 decision outlawing segregation in government schools. The court has further ruled that practically all the restrictions on the national government within the Bill of Rights apply to the states as well. The immediate purpose of this sentence, however, was to strike down the black codes and to guarantee the constitutionality of the Civil Rights Act of 1866. The concept of civil rights had a somewhat restricted meaning during the Reconstruction period. This act encompassed fundamental legal rights, such as the right to make and enforce contracts, to sue, to be parties in a suit, to give evidence and to inherit property. The 14th Amendment's civil rights did not include the political right to vote. In fact, the amendment's second section was a compromise substitute for the goal of black enfranchisement. Section two. 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 is denied to any of the male inhabitants of such state, being 21 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, 21 years of age in such state. For years, the South had looked to the three-fifths rule on the Constitution as a bastion of Southern strength in the House of Representatives. One of the many ironies of reconstruction was that the abolition of slavery actually increased the South's political representation by 15 members. Now all blacks counted fully, even if none of them could vote. The second section of the 14th Amendment, rather than giving blacks the vote, authorized the reduction of any state's representation to the extent that blacks could not vote. This section has never been employed. The next section resulted from another compromise between radical and moderate Republicans. The radicals wanted to disenfranchise all Southerners who had voluntarily supported the Confederacy. Moderates favored a speedy restoration of all political rights to former Confederates. As a compromise, high-ranking Confederates were excluded from office, but not from voting. 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 and comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each house, remove such disability. The 14th Amendment also calmed fears that the South would regain political power. Specifically, the radical Republicans feared power would be used to repudiate the national war depth, to have the national government or the states assume the Confederate war depth, or even to compensate ex-slave holders. 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. The final section of the 14th Amendment concludes, Section 5. The Congress shall have power to enforce by appropriate legislation the provisions of this article. Radical Republicans construed this enforcement section liberally. Nine years later, at their political peak, they used it to justify a new civil rights act that outlawed segregation in nearly all public accommodations, governmental or private. The Supreme Court was more conservative. In 1883, it struck down the new Civil Rights Act, because it applied to private individuals. In 1896, it upheld government segregation of public accommodations if they were separate but equal. Simply because the 14th Amendment could pass a Congress from which Southern representatives were excluded, did not assure the amendment's ratification by the states. President Johnson urged its rejection and all but one of the reconstruction governments took his advice. The exception was Johnson's home state of Tennessee. This effectively blocked ratification of the 14th Amendment. But it also drove the moderate Republicans into the arms of the radicals. Together, in 1867, they instituted a new, far harsher reconstruction policy. A series of four reconstruction acts dissolved all the new governments except that of Tennessee, which was rewarded for ratifying the 14th Amendment. The remainder of the old Confederacy was divided into five military districts. The vote was taken away from ex-Confederates and given to blacks, and new governments were established under military supervision. Southern tradition tells us was slightly more drama than accuracy that these governments were misruled by a triumvirate of illiterate blacks, Southern scallowags, and Northern carpetbaggers. If only the new governments would ratify the 14th Amendment, as Congress promised, they would be restored to their full representation within the Union. This questionable method prevailed. The 14th Amendment was ratified on July 28th, 1868. That same year, the House impeached Johnson, but the Senate fell one vote short of the two thirds required to convict. Despite this failure, the radical Republicans were in fine fetal. Their candidate for president, General Ulysses S. Grant, won the 1868 election. They now pushed for the 15th Amendment, making black suffrage permanent and nationwide. Section one, 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. Reconstruction still gripped the South. Even the combination of military discipline and black enfranchisement could not force the voters in Virginia, Mississippi, and Texas to approve state constitutions which followed radical Republican guidelines. So the radicals offered a deal. Ex-Confederate officials could vote and hold office if the states ratified the 15th Amendment. The three holdout states accepted these terms and finally regained their representation in Congress. The 15th Amendment became part of the Constitution in March of 1870. The American Anti-Slavery Society had been fighting to abolish slavery for decades, long before it was safe or popular to do so. With passage of the 15th Amendment, the society disbanded in triumph. Resolved that we see in the 15th Amendment the capstone and completion of our movement, the fulfillment of our pledge to the Negro race, since it secures to them equal political rights with the white race. Or if any single right be still doubtful, places them in such circumstances that they can easily achieve it. The last federal troops withdrew from the South in 1877. This was the result of a naked political bargain that allowed the Republicans to retain control of the White House despite overwhelming evidence of the Democrats that legally won the disputed 1876 presidential election. Southern conservatives regained control of their state governments through a combination of fraud, intimidation, and bribery directed against black voters. Within the next 25 years, they enacted a policy associated with the term Jim Crow, a catch-all phrase for institutionalized racism. Northerners in general and the Supreme Court in particular looked the other way. The 20th century dawned before more amendments were added to the Constitution. Americans were embracing a profound shift in political outlook. The century opened with a new social reform movement called progressivism. Progressive reformers advocated a form of government which retained and expanded the American tradition of democracy. But regarding the proper role of government, they rejected the traditional American suspicion of political power. Government became the ideal tool for solving social problems, thus followed a sustained expansion of government into American society at all levels and in almost every field of endeavor. These two features of progressivism, direct democracy and social control are visible in the four constitutional amendments enacted during the progressive period. Two of them expanded the power of government. The 16th authorizes an income tax and the 18th authorizes the prohibition of alcohol. Two of them expanded the scope of democracy. The 17th provides for the popular election of senators and the 19th provides for women's suffrage. To appreciate the 16th amendment, it is necessary to consider the original Constitution with regard to taxation. Article I, Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, but all duties, imposts and excises shall be uniform throughout the United States. Article I, Section 9. No capitation or other direct tax shall be laid unless in proportion to the census or enumeration herein before directed to be taken. This empowered the national government to collect two basic categories of taxes, external and internal. External taxes were duties, imposts or tariffs, taxes on items entering the country. During the debate over ratification of the Constitution, external taxes had been far less controversial than internal taxes. Most anti-Federalists had been willing to let the federal government collect tariffs, but it wanted only state governments to collect internal taxes. The Federalist James Wilson addressed this argument. It is asked, can there be two taxing powers? Will the people submit to two taxing powers? I think they will. But this doctrine is a very disagreeable one to some of the state governments. All the objects that will furnish an increase of revenue are eagerly seized by them. This power of taxation will be regulated in the general government upon equitable principles. No state can have more than her just proportion to discharge. The original Constitution did contain two restrictions on internal taxes. It states that excises or taxes on consumption items, along with duties or imposts, must be uniform throughout the country. But direct taxes must be proportionate to the population. What exactly is a direct tax? Most of the framers of the Constitution were rather vague about the definition. They were, however, clear on two points. First, the Constitution lists one type of direct tax, a capitation, also known as a head tax or a pole tax. Second, excise taxes are not direct taxes because excises must be uniform rather than proportional to population. What is not clear is whether all other internal taxes are automatically direct. And even if excise taxes and direct taxes exhaust the types of internal taxes, the dividing line between the two is not obvious. A tax on land is a direct tax, but where does an income tax fit in? The explanation for this vagueness becomes apparent when a related clause in the Constitution is considered. Article one, section two. Representatives and direct taxes shall be apportioned among the several states which may be included within this union according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years and excluding Indians not taxed, three-fifths of all other persons. In other words, the restriction upon direct taxes was put into the Constitution as part of the delicate three-fifths compromise over slavery. Southerners counted each slave as three-fifths of one person, not only for purposes of representation, but also for purposes of direct taxation. The question of what constituted a direct tax was one of the first considered by the Supreme Court. George Washington's administration levied a variety of internal taxes, including both excise and direct taxes. The direct taxes were proportional to population. The total amount was first set at $2 million, and then each state was assigned a quota based upon its relative population. Slaves counting as only three-fifths of a person. Land, houses, and slaves were taxed at rates sufficient to fill the quota in each state. This was an awkward system, similar to and only slightly more effective than the tax requisitions imposed under the Articles of Confederation. Among the excises imposed by the Washington administration was the whiskey tax, which sparked the famous Whiskey Rebellion. Other excises included taxes on the manufacture of snuff, the refining of sugar and sales at auctions. Carriages also were taxed, but only for ownership, not for sale. The constitutionality of the carriage tax was challenged in the courts with the argument that it was a direct tax, and must be levied proportionately. The court's ruling restricted the concept of a direct tax. The long-standing American hostility to internal taxes helped elect Thomas Jefferson as president in 1800. His administration repealed them all, whether excise or direct. For the next half century, the national government did without internal taxes, except when they were briefly reimposed to help finance the war of 1812. But when the national government confronted the astronomical cost of the Civil War, it brought back internal taxation, this time for good. And with this came America's first income tax, and income tax had been proposed during the war of 1812, but not enacted. During the Civil War, the Union's income tax was modern in many respects. It covered all incomes over $600 per year, and graduated rates ranging from five to 10%. To prevent evasion, the government even provided for collection of taxes through withholding. The Civil War income tax was repealed in 1872. Nine years later, the Supreme Court was called upon to consider the constitutionality of the income tax. Our conclusions are that direct taxes within the meaning of the Constitution are only capitation taxes and taxes on real estate, and the tax of which the plaintiff complains is within the category of an excise or duty. After another 15 years, the court changed its mind. Various attempts have been made to reintroduce the income tax, and in 1894, the attempt was successful. The new income tax applied only to incomes over $4,000 at a flat 2% rate. Nevertheless, the tax was instantly challenged as unconstitutional, and this time the court agreed. The court found that an income tax partially involved the direct tax, at least to the extent that it taxed the income from land. But an underlying fear motivated that court. It realized that an income tax could be used eventually to redistribute income from the rich to the poor. There was an opinion of one of the judges voiced this fear. The present assault on capital is but the beginning. It will be but a stepping stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich. A war constantly growing in intensity and bitterness. If the court sanctions the power of discriminating taxation and nullifies the uniformity mandate of the Constitution, it will mark the hour when the sure decadence of our government will commence. The new court decision hardly settled the matter for good as the progressive movement gained strength, so did the demand for a national income tax. Several times, Congress almost defied the court ruling by passing another income tax. By 1909, the passage of an income tax through Congress was virtually assured. But President Taft, later a chief justice, suggested instead a constitutional amendment to avoid conflict with the Supreme Court. Congressional opponents of the income tax immediately and solidly supported this amendment. They believed it could never be ratified by the three forces of the states necessary. One progressive congressman from Tennessee commented on this apparent about face. During the past few weeks, the unexpected spectacle of certain so-called old line conservative Republican leaders in Congress suddenly reversing their attitude of a lifetime seemingly espousing, though with ill concealed reluctance, the proposed income tax amendment to the Constitution has been the occasion of universal surprise and wonder. Thus the 16th amendment passed Congress and was submitted to the states. Opponents of the income tax had seriously miscalculated. True, the amendment headed off the income tax bill before Congress, but the amendments sailed through the state legislatures. Part of its popularity actually was due to the provisions of the income tax bill. A person had to earn at least $3,000 per year before paying any tax. Over 90% of the voting public earned less than this and few people ever expected to be taxpayers. The 16th amendment became part of the Constitution on February 25th, 1913. Article 16, the Congress shall have the 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. Soon after, Congress adopted a modest graduated income tax with rates varying from 1% for income over $3,000 to 6% for income over $500,000. This progressive reform achieved its full potential when the US entered World War I. The World War I personal income tax started at 6% for an income of $1,000 for a single person and went as high as 77% in the top brackets as a prominent progressive economist boasted. This is the high watermark thus far reached in the history of taxation. Never before in the annals of civilization has an attempt been made to take as much as two-thirds of a man's income by taxation. In comparing our present income tax with the British, it is to be noted that our rates are much higher on the larger incomes and much smaller on the lower and moderate incomes. The American scale is an eloquent testimony to the fact that there is greater appreciation here than abroad of the democratic principles of fiscal justice. The income tax receded from these heights after the war but it continued to provide the national government with the majority of its revenue. President Franklin D. Roosevelt's new deal returned to the tax levels of World War I but still only about four million Americans paid any income tax. Not until US involvement in World War II did a grand total of 42 million Americans pay personal income tax. Roosevelt, heir to the progressive movement who spoke of targeting the rich ironically brought income taxes to the common man. Moreover, to ensure payment, Congress instituted withholding during World War II. Thus, the modern tax structure owes its existence as much to war as to the 16th Amendment. The 17th Amendment was ratified in the same year as the 16th. This amendment altered the method of choosing United States Senators. Previously, they were selected by each state legislature. Now they were elected by the voters of the state. Article 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 rits 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. The 17th Amendment is a structural amendment but a fundamental one because it did something that the Constitutional Convention explicitly and overwhelmingly rejected. The Senate functioned much like earlier Congresses had functioned under the Articles of Confederation with each state government equally represented. A popular elected Senate would have been too democratic for nationalists whereas advocates of states rights had feared it might undermine state governments. Some serious problems developed, however. From the Senate's first opening session, a state legislature would often become deadlocked and lose part of its senatorial representation as a result. Iowa, for example, had no senators for two years after entering the union because its legislature was evenly divided between the two major parties. During the 1896 Kentucky legislature, a similar deadlock seemed destined to break out in violence. A local newspaper observed. There was not a score out of the 132 members at Saturday's session who did not have one or more pistols concealed to say nothing of knives and other weapons. Even peaceably disposed legislators were tempted to arm in self-defense and both parties had chosen leaders on the watch at commanding points about the hall. One of the most fearless among the Republicans was deputed to open fire on anyone who attempted to molest them. The Democrats had several trustworthy men in position to cover this Republican in case of a signal for close action. The governor of Kentucky declared martial law and sent in the militia to police the legislators, but they still failed to choose a senator that year. By the turn of the century, bribery, corruption, and the purchase of senatorial elections became increasingly common, but more than desire for fairness fueled the drive for the popular election of senators. The Senate was the most conservative body in the national government and it had voted down a great deal of progressive legislation. Furthermore, the progressives wished to multiply the functions of the state and local governments as well as those of the national government. The amount of time legislators spent in choosing senators hindered the mountains of new progressive legislation. The Oregon legislature did not meet at all during the year 1897 because the minority party in their efforts to block the election of an opposition senator never showed up. The Senate had a strong vested interest in maintaining the electoral status quo. Five times between 1893 and 1902, the House of Representatives approved the popular election of senators by a two-thirds vote. The Senate refused to consider it, but the states moved to bypass the Senate. 29 of them established senatorial primaries where the voters registered their preference after which the state legislature formally rubber-stamped the voters' decision. The states also began calling for an amendment reflecting this process. The Senate caved in and the 17th amendment was ratified on May 31, 1913. More important than expanding the scope of democracy was the 19th amendment, guaranteeing the vote to women. The struggle for women's suffrage dated back to a more general demand for equal rights for women, which in turn emerged from the abolitionist movement. Abolitionism was the radical anti-slavery movement, which declared that every human being, simply by being human, had a moral claim to their own body and the actions of their own body. Women who had thrown themselves into the abolitionist crusade quickly noticed parallels between the legal disabilities of blacks and those of women. Unable to vote, hold office, or serve on juries, women were legally considered wards of their nearest male relative, or chattels of their husbands. Husbands legally controlled all of their property, their earnings, and had legal guardianship of their children. One anti-slavery feminist remarked. We have good reason to be grateful to the slave. In striving to strike his irons off, we found most surely that we were manacled ourselves. In the early 19th century, women wrote, lectured, and traveled the country on the fight against slavery. They faced social discrimination from the public, and even from some men within the anti-slavery movement. Indeed, the question of whether women should be equal members had split the American anti-slavery society into two warring factions. Was abolitionism a fight for human rights, or for black male rights? Feminists answered human rights. After being refused admittance into a world anti-slavery meeting by virtue of their sex, Lucretia Mott and Elizabeth Cady Stanton organized the First Women's Rights Convention in Seneca Falls, New York in 1848. The convention issued its own version of the Declaration of Independence. We hold these truths to be self-evident, that all men and women are created equal, that they are endowed by their creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness. The Seneca Falls Declaration continued to enumerate the rights denied to women. The history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her. To prove this, let facts be submitted to a candid world. He has never permitted her to exercise her inalienable right to the elective franchise. Thereby, leaving her without representation in the halls of legislation, he has oppressed her on all sides. He has made her, if married, in the eye of the law, civilly dead. He has taken from her all right in property, even to the wages she earns. He has monopolized nearly all the profitable employments, and from those she is permitted to follow, she receives but a scanty remuneration. He closes against all the avenues to wealth and distinction which he considers most honorable to himself. As a teacher of theology, medicine or law, she is not known. Although feminists called attention to these inequities, they achieved virtually no political victories until after the Civil War. With the emancipation of slaves, women looked forward to their emancipation. But when the 14th Amendment was ratified, feminists were shocked. Not only were they not included, for the first time the word male was inserted into the Constitution. The 15th Amendment these feminists insisted should mention sex along with race, creed, and previous condition of servitude as impermissible grounds for denying suffrage. Again, this amendment ignored women. Prior to the Civil War, the women's movement showed scant interest in securing the vote. Now from the passage of the 14th and 15th Amendments up past the turn of the century, the movement became obsessed with women's suffrage, almost to the exclusion of all other goals. This resulted partially from the belief that any further advances were contingent upon the political leverage that came from the right to vote. And it partially resulted from feminism becoming caught up in progressivism. This was most evident in the new mode of arguing employed by feminists. Prior to the Civil War, they had relied on principled arguments demanding equality as a natural right. During the progressive period, feminists relied on pragmatic arguments, attempting to show how women's suffrage would accelerate progressive reform. The eminent woman reformer, Jane Adams, vividly illustrates this new approach. Insanitary housing, poisonous sewage, contaminated water, infant mortality, the spread of contagion, adulterated food, impure milk, smoke, laden air, ill ventilated factories, dangerous occupations, juvenile crime, unwholesome crowding, prostitution and drunkenness are the enemies which the modern cities must face and overcome would they survive. Logically, its electorate should be made up of those who can bear a valiant part in this arduous contest. Those who in the past have at least attempted to care for children, to clean houses, to prepare foods, to isolate the family from moral dangers. Those who have traditionally taken care of that side of life which inevitably becomes the subject of municipal consideration and control as soon as the population is congested. To test the elector's fitness to deal with this situation by his ability to bear arms is absurd. The implicit premise here was the moral superiority of women. Enemies of women's suffrage use this same premise to argue that women's proper place was in the home. President Cleveland used this approach in the Ladies' Home Journal in 1905. Thoughtful and right-minded men, based their homage and consideration for women upon an instinctive consciousness that her unmasked qualities, whether called weaknesses, frailties, or what we will, are the sources of her characteristic and a special strength within the area of her legitimate endeavor. In actual war, it is the men who go to battle, enduring hardship and privation and suffering disease and death for the cause they follow. It is the mothers, wives, and maids betrothed who neither following the camp nor fighting in battle constitute at home an army of women's constancy and love whose yearning hearts make men brave and patriotic. So in political warfare, it is perfectly fitting that actual strife and battle should be apportioned to man, and that the influence of women radiating from the homes of our land should inspire to lofty aims and purposes those who struggle for the right. Different traditions from Catholicism to the Southern lifestyle were hostile to women's suffrage, but by 1914 women began a vigorous campaign. Parades and other demonstrations were accompanied by scuffles, mass arrests, and even hunger strikes. Soon a total of 28 out of the 48 states had followed the trail blazed by Wyoming back in 1890. They allowed women to vote either in all elections or in presidential elections. In 1917, Montana elected the first United States congresswoman, Jeanette Rankin. Still, Congress did not act until President Woodrow Wilson, a progressive born in the South, but lately endorsed during World War I a constitutional amendment in franchising women. Like so much of the progressive program, the 19th amendment was explicitly framed as a war measure. Its wording was patterned after the 15th amendment. Article 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. The 19th amendment became part of the Constitution in August 1920, but the utopia promised by suffragists failed to materialize. The most noticeable change was to shift polling places from the traditional saloons and barbershops to schools, churches, and firehouses. Women voted much the same way as men and politics continued as usual. One progressive amendment made a great impact. Indeed, many have called it nothing short of catastrophic. Even contemporaries were so conscious of its shortcomings that within 14 short years, this progressive amendment was repealed. This was the 18th amendment prohibiting alcohol. Prohibition was a product of the temperance movement. Like the abolitionist movement and the women's movement, temperance had its origins in early 19th century America. All three of these social reforms grew out of the general evangelical fervor which swept Protestant America. After the Civil War, temperance and feminism showed many parallels. For example, the temperance movement also altered its goal and the strategies for attaining that goal. Initially, the temperance movement merely opposed excessive drinking. It did not advocate abstinence. And initially, it hoped to achieve this goal by reforming the behavior of individuals. It was not political. These features are evident in the membership pledge of an early American temperance society. We will be at all times sparing and cautious in the use of spiritual liquors at home, in the social visits, decline them so far as possible, avoid them totally in retail stores and in general, set our faces against the intemperate use of them, conceiving as we do, that except in a very few cases as of medicinal use, spiritual liquors are the bane of morals and a drain on health, piety, and happiness. The term spiritual liquors did not even apply to fermented beverages, wine, beer, or hard cider. But as American cities swelled with Catholic immigrants who were immune to evangelical Protestantism, the temperance movement shifted to advocating prohibition. Unable to persuade these immigrants to temperance, they tried to enforce it by law. Total abstinence from all alcohol became the goal. Government became the means. In 1851, Maine became the first state to outlaw the demon rum. Within five years, a dozen states followed. During the Civil War, the Republican Party made a national gesture toward temperance with a very lucrative syntax on liquor. This prohibitionist surge was short-lived. Most of the state laws remained on the books less than a decade. By the turn of the century, only five states were still dry. The organized temperance movement had dwindled into the perennial but ineffectual efforts of the National Prohibition Party. But as with women's suffrage, prohibition linked arms with the progressive movement and thereby revived. Two major organizations embodied the three-way alliance between prohibitionism, feminism, and progressivism. The first was the Women's Christian Temperance Union, whose most militant, though not most representative member was Cary Nation. This 50-ish matron gained national notoriety by marching into saloons with their trusty hatchet and busting up bottles, kegs, and fixtures. Most of her hatchetations, as they were called, were confined to Kansas, a state which outlawed saloons. But she occasionally forayed into the legal saloons of a neighboring state. One of the women who joined Cary Nation in a hatchetation described the event. When reaching the saloon, Mrs. Nation, with her hatchet, struck the first blow that resounded around the world, bringing the front plate glass casement to the sidewalk with a tremendous crash, which seemed to strike consternation into the souls of those who were witnessing on the street. We walked inside the building after demolishing the casement. A showcase of their choicest brands was the first to pass under our inspection. That was soon demolished. Mrs. Nation passed around the counter and attacked a large plate glass mirror. And as she raised her hatchet to strike the blow, she remarked, You have been reflecting the image of the devil long enough. Down you come. And it came down in proper and approved style. Miss Muntz, with her iron poker, was trying to break up a slot machine. Mrs. Evans was assisting me with the showcase. Quick work was made of the destruction of the place. An equally important organization was the politically astute anti-saloon league. The league flooded the country with literature detailing the evils of alcohol. It vividly captured the close connection that progressives perceive between alcohol and other social ills. The saloon produces 80% of the criminals in this country. The saloon is responsible for most of the 60,000 girls who go astray into immoral lives every year. The saloon and the brothel are twin evils. And every man who votes for the liquor traffic is indirectly voting to create conditions which feed the social evil. The saloon is responsible for more vice, degradation, sorrow, misery, tears, heartaches and deaths than any other cause tolerated by government. The American people have been hysterically trying to mop up the deluge of poppers, blind, epileptics, criminals, et cetera, which have flowed from the faucet of the liquor business and the saloon. Better to stop the faucet. Despite their lurid propaganda and zealous tactics, the prohibitionists should not be dismissed as unsophisticated and bigoted blue noses. They were not a rural minority who slipped their aberrant program over on an unsuspecting public. In fact, the statistical case against alcohol was quite strong. There was a close correlation between alcohol and violent crime, as well the prestigious American Medical Association was solidly behind prohibition for health reasons. Prior to the passage of the 18th Amendment, 19 states had totally banned alcohol and large portions of the remaining states were dry under local laws. Overall, more than half the country's population already was living under prohibition. This and other evidence suggests that prohibition had greater mass appeal than did women's suffrage. But again, American participation in World War I put this particular part of the progressive agenda over the top, a patriotic condemnation of the German-American brewers, a wartime need to conserve food, and a concern over the wicked temptations of army life. All these added fuel to prohibition. The War Department banned liquor sales near military training camps, and an Emergency Food Control Act limited whiskey production. Finally, in December 1917, Congress sent a proposal for a national prohibition amendment to the states. The final text of the 18th Amendment gave the national government not a discretionary power as in much of the Constitution, but a mandatory power. Section one, after one year from the ratification of this article, the manufacturer, sale, or transportation of intoxicating liquors within the importation thereof in two, or the exportation thereof from the United States and all territories subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section two, the Congress and the several states shall have concurrent power to enforce this article by appropriate legislation. A third section of the amendment contained a constitutional innovation employed by subsequent amendments, a time limit upon ratification. This section was a compromise to opponents of the amendment to threaten to filibuster. Section three, 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 Congress. The amendment was so popular that the time limit proved no difficulty. A little more than one year later, the 18th Amendment was ratified on January 19, 1919 with only two states declining. Congress immediately passed the Volstead Act to implement the amendments terms. Progressives hailed prohibition as the greatest moral triumph since the abolition of slavery. Of course, prohibition was a scandalous failure. The magnitude of the failure was so great that even a special presidential investigating commission admitted the disaster in 1931. In consequence of the high development of illicit distilling, a steady volume of whiskey, much of it good quality is put in circulation and the prices at which it is obtainable are a convincing testimony to the ineffectiveness of enforcement. The improved methods, the perfection of organization, the ease of production, the cheapness and easy accessibility of materials, the abundance of localities where plants can be operated with a minimum risk of discovery, the ease with which they may be concealed and the huge profits involved have enabled this business to become established to an extent which makes it very difficult to put to an end. The Treasury Department eventually employed over 4,000 agents in a futile effort to enforce the alcohol ban. All this merely filled the coffers of organized bootleggers. The fight against bootlegging enhanced police powers at all levels, impinging ever more closely upon civil liberties. The Supreme Court, for example, ruled that evidence from wiretapping was constitutionally admissible in court. Prohibition was one of the most important issues in the 1928 presidential election. The Republican candidate was the progressive Herbert Hoover. He defended prohibition as a noble experiment. The Democratic candidate was Alfred E. Smith, the first Roman Catholic to run for that office. The opposed prohibition. On the eve of the election, the famous essayist H. L. Menken wrote, If Al wins tomorrow, it will be because the American people have decided at last to vote as they drink and because a majority of them believe that the Methodist bishops are worse than the Pope. If he loses, it will be because those who fear the Pope outnumber those who are tired of the Anti-Saloon League. Hoover defeated Smith in a landslide. The anti-Catholic, anti-immigrant prejudices associated with the temperate movement obviously had not dissipated. Four years later, by the next presidential election, the country was in the midst of the Great Depression. The demand for the repeal of prohibition was overwhelming. Hoover was again the Republican candidate, but this time he equivocated on prohibition. The new Democratic contender, Franklin D. Roosevelt, upon receiving his party's nomination, announced to wild applause that the 18th Amendment was doomed. Roosevelt was as good as his word. Shortly after he assumed the presidency, Congress passed the 21st Amendment repealing the 18th Amendment. After nine and one-half months with record-breaking speed, the 21st Amendment was ratified. Prohibition became a bad memory. For the first and only time, a constitutional amendment had been repealed. Since the repeal of prohibition, five more amendments have been ratified. But in contrast to the Civil War and the progressive amendments, these last five, along with the earlier 20th Amendment, entailed only minor constitutional house cleaning. Three of these six amendments were structural. The 20th Amendment, ratified in 1933, also was called the lame duck amendment. It changed the terms of congressmen and senators to eliminate the lame duck session, during which the old Congress still sat, despite the fact that a new Congress already had been elected. The 22nd Amendment, ratified in 1951, limited the president to two terms. This was in reaction to the fact that President Roosevelt had violated the unwritten tradition of two terms. Now future presidents could not. The 25th Amendment, ratified in 1967, provided for choosing a new vice president if that office became vacant. Previously, the office simply remained vacant until the next election. The other three amendments deal with suffrage. The 23rd Amendment, ratified in 1961, allows residents of the District of Columbia to vote for president. The 24th Amendment, ratified in 1964, prohibits payment of a poll tax as a qualification for voting in any national election. Although it can still be made a qualification for voting in state elections. And the 26th Amendment, ratified in 1971, grants the vote to persons 18 years old or older. The amendment process continues to exist as a vehicle of social reform. Politics is a reflection of the strengths and weaknesses of society. Factions contend, emotions flare, and reason does not always prevail. But government not only responds to men's virtues, but to their prejudices. In 1788, Benjamin Franklin wrote about the need for a responsive government. We must not expect that a new government may be formed as a game of chess may be played by a skillful hand without a fault. The players of our game are so many, their ideas so different, their prejudices so strong and so various, and their particular interests, independent of the general, seeming so opposite that not a move can be made that is not contested. The numerous objections confound the understanding. The wisest must agree to some unreasonable things, that reasonable ones of more consequence may be obtained. 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