There are so many catch-phrases about the importance of home:
“There’s no place like home.”
“Not in my house!”
“E.T. phone home.”
The 3rd and 4th Amendments to the Constitution speak to the sanctity of the home for each American citizen, in quite different ways. The 4th Amendment actually covers quite a bit more than a person’s home, and completes the pentad of civil/criminal law Amendments along with the 5th through the 8th:
The right of the people to be secure in their persons, houses, papers, and effects, 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 persons or things to be seized.
So, not only are citizens afforded some protection against searches of their homes, but also their personal and financial records, their belongings (including vehicles), and even themselves. Or at least in theory – more on that in a moment.
The 4th Amendment (as is the case with the entire Bill of Rights) traces back to early America’s strong English roots. In the centuries leading up to the American Revolution, searches and seizures were a means of oppressing opposing views, and even though warrants were required in name, it was easy enough to concoct one without true probable cause. The origin of “a man’s house is his castle” traces back to this time when Sir Edward Coke said “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.” It just takes too long to say that when you’re sitting next to someone in a dive bar, so we tend to go with the shorter version these days.
While at least some effort was expended toward protecting the rights of citizens in England, there was virtually no protection for the colonists across the Atlantic. General warrants and “writs of assistance” were used to enforce oppressive tax laws even when little or no probable cause existed. In 1761, James Otis led a group of merchants into court on the issue, and although they lost, John Adams later stated this was “the spark in which originated the American Revolution”. Otis was elected to the Massachusetts colonial legislature for his efforts and continued to fight the battle from there. James Mason worked the prohibition of general warrants into the Virginia Declaration of Rights in 1776 at the onset of the Revolutionary War, and James Madison followed suit in the Bill of Rights a few years after its end.
The 4th Amendment is among the Amendments that have been most susceptible to the development of technology since its inception. Not much happened during the 18th and 19th centuries, but in the 20th century, particularly as we have developed and refined the means to communicate over great distances with electricity and light, the protections introduced by the 4th Amendment have become somewhat blurred. Meanwhile, as hostilities and tensions have heightened between races, nations, and creeds, the willingness to wait for things like “due process” and “probable cause” has taken a severe hit at all levels of Government. 9/11 took that to a whole new level on the surveillance front, and the ever-growing anxiousness of police officers and “citizen cops” reflects the trend in our streets.
The 3rd Amendment, by comparison, has seen very little activity, and in fact is the least litigated Amendment to the Constitution. The road to its adoption, however, does shed light on the earliest thinking around the 2nd Amendment, thinking that is still propagated today with zero tolerance for discussion: distrust of the armies of the state.
This distrust extends back to England, where citizens were confronted with two options in wartime (and let’s face it, England was often at war): housing soldiers in barracks or scattering them amongst homes, inns, and ale houses. Though not happy with either option, the English ultimately opted for the latter, as they did not like having a standing army in one place with the potential to bring down some form of Government-sponsored oppression.
As you might expect, the British exploited this with increasing frequency in the colonies, as more and more troops were deployed to keep them in line. In 1765 they began employing Quartering Acts, and the situation hit a head in 1770 with the Boston Massacre. You know a lot of the rest, but now you can see why the 3rd Amendment was a big priority in the framing of the Bill of Rights:
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.
Now back to that distrust of Government armies… more specifically this traces back to English distrust of “standing armies in peacetime”. I noted in an earlier blog post that the Virginia Bill of Rights of 1776 was a key predecessor to our Constitutional Bill of Rights, and the Virginia document (as was the case with other early state constitutions) spoke directly to fear of standing armies: “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 of course later evolved into the 2nd Amendment, which will be the sole focus of my *next* blog post. Which I hope you are able to read within the comfortable confines of your castle.
The 4th through 8th Amendments to our Constitution all touch on some aspect of civil or criminal law and the rights of those accused or convicted. I’ll leave the 4th Amendment for the next post, however, in combination with the 3rd, as they both speak to the sanctity of one’s home.
The 8th Amendment is extremely short – in fact it is the shortest in the Constitution:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Replace “shall” (James Madison’s contribution) with “ought”, and you basically have the same wording as was written into the English Bill of Rights of 1689. The definition of “cruel and unusual punishment” has been a subject of debate ever since that time. The English law was to some extent in response to the case of Titus Oates. Oates was tried and convicted of perjury for having wrongly accused a number of people that ended up being executed. His punishment, in addition to imprisonment, included three days per year of pillory and whipping. While there is no doubt Oates deserved severe punishment for contributing to many deaths, Parliament determined the court had gone too far.
The text of the English Bill of Rights on this topic made its way into George Mason’s Virginia Declaration of Rights in 1776, and Mason, Patrick Henry, and Abraham Holmes strongly argued for its inclusion in the Constitution, as a means of limiting the power of the Government and preventing punishments to be used for oppression of the people. The 14th Amendment later clarified that this applied to all levels of Government. That said, there is again still considerable debate about what constitutes “cruel and unusual punishment”. Much of that debate centers around the death penalty and the various means of applying it. But solitary confinement is another topic of debate, and then there is the whole question of torture applied to citizens of other nations. The bottom line is that we can’t seem to keep ourselves from pushing the envelope of cruelty in the name of justice or defense.
The 7th Amendment gets more into the domain of civil law:
In suits at common law, where the value in controversy shall exceed twenty dollars, 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.
This one also dates back to the early nation’s English roots, but Europe and most of the rest of the world have moved away from jury trials for civil cases. In the days leading up to the American Revolution, however, jury trials were a significant component of the “resistance”. As the British imposed increasingly oppressive laws and taxes, the colonials implemented juries to declare them illegal, so this system was considered somewhat sacred going into the writing of the Constitution and Bill of Rights.
The 7th Amendment is unique in two ways: no part of it has never been interpreted by the Supreme Court to apply to the states via the 14th Amendment (unlike most of the other Amendments, especially in the Bill of Rights), and meanwhile the states have all voluntarily applied it anyway. There are some exceptions, but in most cases, anyone who brings a civil suit has the right to trial by jury, much to the delight of Judges Wapner and Judy.
The 6th Amendment has a lot more facets to it than the 7th or the 8th:
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 defence.
It’s a mouthful, but it is also probably the most concise way to summarize what constitutes a “fair trial”. Without any one clause in this Amendment, defendants’ rights would be greatly diminished: trials could take years or be hidden from public view; juries could be loaded to ensure a conviction; trials could be moved to locations more likely to generate a conviction; witnesses could have no accountability to the accused; witnesses could ignore calls to come to the defense of the accused; or the defendant could be forced to conduct their own defense with little or no knowledge of law.
The Constitution Center has a great description of how trials were conducted during the early days of our nation:
“At the time of the Founding, there were local sheriffs but no professionalized police forces; instead, ordinary men took turns serving as constables or night watchmen. Criminal cases were almost always brought by victims, not public prosecutors. At trial, neither side typically had a lawyer, so both victims and defendants represented themselves. Trials were like shouting matches, in which victims and defendants argued and brought other live witnesses to tell their stories. They lasted minutes or hours, not days. Juries of twelve ordinary men were central players in this system. They were local citizens who often knew the victim, defendant, and other people and places involved. They also knew which charges subjected defendants to the death penalty (as many felonies did), and which did not. Jurors looked witnesses in the eye and debated both whether a defendant was factually guilty and whether he deserved mercy. They checked the government’s power to punish and applied the conscience of the community in the public eye, assuring everyone that justice had been done swiftly, impartially, and fairly.”
Much has changed since those days, of course, but the fundamental citizens’ rights under the 6th Amendment have remained the same.
The 5th Amendment is the most well-known of these four, and has even become a colloquialism in matters that have nothing to do with law: “I plead the 5th”. That phrase is really only speaking to one part of the 5th Amendment:
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 offence 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 just compensation.
As with the 6th Amendment, there are a lot of moving parts in the 5th: it requires a grand jury in order to charge someone for a federal crime; it prevents re-prosecution for the same crime by the same authority once a person is acquitted; it allows a person to avoid self-incrimination (which is where the colloquialism comes from); it guarantees “due process”; and it constrains the Government from confiscating property without providing compensation. Of all these items, the one that opens itself up to the most debate is the definition of “due process”. This element of the 5th Amendment dates all the way back to the Magna Carta in 1215: “no free man shall be arrested or imprisoned . . . except by lawful judgment of his peers or by the law of the land”.
Taken together, the 5th through 8th Amendments (and the 4th, which we’ll tackle in the next post) do a thorough job of framing the rights of those accused of a crime or other transgression. They also form the basis for the plot of virtually any book, movie, or TV show about criminal justice. So who says Constitutional law can’t be entertaining?
Friends, we have arrived at the Bill of Rights. The first ten Amendments to our Constitution were the result of furious debate over the revolutionary document’s scope, mirroring the scope of the Government’s power. A strong contingent of the Founding Fathers wanted a Bill of Rights included from the get-go. And, had there not been a general understanding that Amendments would soon after be added, the original Constitution might never have been ratified.
Central to the debate were the two opposing views of Government at the time, effectively defining the first instance of our familiar (and oft aggravating) two-party system: Federalists and Anti-Federalists. Federalists favored a strong central Government, while Anti-Federalists emphasized power to the states and the people. Many states already had their own bills of rights going into this debate, and expected the Constitution to implement the same. The Anti-Federalists were concerned that without explicit mention of basic rights, America would eventually and effectively become just another monarchy, from which much blood had been spilled to escape. The Federalists strongly felt that a Constitution with limited scope by definition afforded all of those rights to American citizens, and countered that if a Bill of Rights left anything out, it would be interpreted to mean those rights didn’t exist, thereby achieving the opposite of what the Anti-Federalists wanted.
Through the course of this process, James Madison went from an opponent of a Bill of Rights to a supporter, and having seen both sides as such, he became the ideal author – working to achieve a balance that would satisfy the concerns of both sides. Madison leaned heavily on a few key historical examples as he assembled his version of the Bill of Rights, including the Magna Carta (from 1215), the English Bill of Rights (from 1689), and George Mason’s Virginia Declaration of Rights (from 1776). When he submitted his first draft, it was of course immediately attacked by the more extreme Federalists, but Madison and others worked diligently to ensure the Bill of Rights, in whatever form, would survive this process. As Thomas Jefferson noted in correspondence to Madison from his detail as Minister to France, “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.”
Madison originally proposed the Bill of Rights as a series of edits to the original Constitution. The ensuing arguments eventually led to a different approach of appending the Amendments after Article VII along with an introductory preamble. From Madison’s initial draft, seventeen Articles were approved by the House in August of 1789. Of those, twelve were approved by the Senate in September, and a slightly modified version was officially approved by Congress that same month. Articles III through XII were ratified by the required number of states on December 15, 1991, and became the first ten Amendments to our Constitution, more lovingly known as the Bill of Rights. Article II would take another two centuries to become the 27th Amendment. Article I, the Congressional Apportionment Amendment, still sits in limbo today – that will be the subject of a future blog post here.
The Bill of Rights begins with the following:
The conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
The first eight Amendments in the Bill of Rights, also topics of future blog posts here, speak to specific types of rights, while the 9th and 10th Amendments serve as a kind of “fine print” to better clarify the scope. The 9th Amendment states:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This was in direct response to the argument above by the Federalists: a Bill of Rights that failed to mention a specific right might be interpreted to suggest the non-existence of that right. Madison viewed this as one of the better arguments for not having a Bill of Rights, so he endeavored to create text that would directly address it. Nearly two centuries later, the 9th Amendment was cited along with the 14th Amendment as a basis for the final decision of the Supreme Court in Roe v. Wade. That said, I would argue that the 14th Amendment itself, along with several other Amendments that speak to various types of voting rights, suggest a partial failure of the 9th Amendment to achieve its ultimate goal. In fact, that the Supreme Court even got involved in Roe v. Wade is an interesting conundrum: it confirmed a specific type of individual right, but in so doing made the federal Government more powerful.
The 10th Amendment states:
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.
This was in direct response to the concerns of the Anti-Federalists, who wanted to ensure limitation of the federal Government’s powers and protect the rights of the states and the people. Building on others’ modifications to what was originally stated in the Articles of Confederation (which were our “Constitution” of sorts until 1789), Madison somewhat begrudgingly submitted what became the 10th Amendment, noting that it was probably redundant with the original Constitution, but it seemed to do no harm, and ratification seemed to depend on its inclusion. For most of our history, the Supreme Court has effectively viewed the 10th Amendment the same way: unnecessary but harmless. Some nuances of interpretation emerged in the latter half of the 20th Century, typically centered around encouragement of the states to help enforce federal policy, and sometimes tied to the apportionment of federal funding to the states.
However the first ten Amendments may be interpreted today, they are so integral to the original Constitution having been ratified that it’s sometimes difficult to view them as Amendments at all. In that respect, all ten can be viewed as the “fine print” to the document that defines our nation. And, as they say, always read the fine print.
Have you ever wanted to sue a state? Well, the 11th Amendment makes that a bit more difficult than it once was back in the early 1790’s. This was the first Amendment to be passed after the Bill of Rights. It is staggering to compare its conciseness with that of the 12th Amendment:
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 original Constitution, Article III more specifically, allowed federal courts to hear cases where citizens of another state or even a foreign state brought suits against a state. This led to the case of Chisholm v. Georgia in 1793, where a citizen of South Carolina sued Georgia for unpaid war debts. Around the same time, several other suits were in work, including one by a British subject. This prompted Senator Caleb Strong to propose what ultimately became the 11th Amendment. For more discussion on this, as with all the Amendments I’ve talked about here, you should definitely check out the National Constitution Center (https://constitutioncenter.org), among other resources of course.
The 11th Amendment was passed by Congress in January of 1794, and over the next year, twelve states ratified it, which was sufficient at the time to reach the 3/4 threshold in 1795. The last state to ratify was New Jersey, in 2018. I suppose better late than never, but, like, wow.
Since its adoption, the 11th Amendment has generally been interpreted more broadly than its text immediately suggests. Courts have systematically applied it even when a citizen of a state sues his or her own state. Some exceptions apply: federal courts can essentially bar state officials from violating federal law, and the all-powerful 14th Amendment has been interpreted to allow Congress to abrogate state immunity from lawsuits as well.
There isn’t a whole lot more to say about this one. Court is adjourned.
We interrupt your regularly scheduled Amendment posts with a diatribe on today’s events surrounding the Robert Mueller testimony before Congress. Yes, I freely admit it, this is a diatribe. A rant. A tantrum. #gimmesomecheesewiththatwhine
It is a fundamental tenet of the Parallax Machine to present, at the very least, some attempt at a third point of view on matters such as this. What figuratively (see, I didn’t misuse “literally” there) blows my mind is that what I’m about to discuss is still largely a third point of view: our nation is under attack, and we are doing nothing about it.
To minimize digression here, I’m going to focus this on one thing: social media. It’s really all I need to discuss. I’m not going to get into security at polling stations, or the continual efforts to make it more difficult for some folks to vote than for others. Those are fair and rich topics to explore, but they’ll only dilute a much more obvious and irrefutable reality – our technological world, and the social impacts of that technology, have far outpaced our ability to protect the foundation of our republic: fair and sovereign elections.
Here’s another attempt to divert digression here: which side of the political aisle you occupy should have zero bearing on the subject of this rant. Whether your candidate was helped OR hindered by the attacks on our electoral sovereignty in 2016 should have no bearing on your level of outrage in response. Whether Democrat or Republican, we are all American, and an attack on any of us is an attack on all of us. So it’s a ginormous understatement to… whoa, ginormous passed the spell checker? Sorry, here I am trying to avoid digression, and I insert one of my own.
It’s a HUGE understatement to say I am disheartened by the focus of the past 3 years in this investigation. Democrats have been far too invested in finding a smoking gun that would bring down the President. Republicans have been far too invested in spin tactics to protect their hold on multiple branches of our government. Neither party has spent anywhere near the appropriate amount of time getting at the heart of the matter, which goes far beyond the 2016 election: Russia attacked our political process, and they did so with rudimentary technology, in response to what we have become as the typical American citizen.
Next time you’re in a restaurant, or an airport, or a store, or even a park, stop and look at the people around you. You are almost guaranteed to see more people than not staring down at their cell phone. In fact my anecdotal estimate is 75% or more. The exact number does not matter. What matters is that we live on our phones. And one of the things we are most likely to be doing on our phones at any moment is engaging in social media. We old people do it with Facebook. Somewhat younger people use Instagram and Snapchat. Still younger people use apps I haven’t even heard of. People of all ages seem to use Twitter. It has become not only the way we interact with one another – but more importantly the way far too many of us “learn” what is happening in the world around us.
Leading up to the 2016 election, Russia did not need a future Nobel Prize winning scientist to help them with the global arms race. They only needed the most basic computer skills to exploit our dependence on social media. Legions of bots were deployed to deliver the propaganda they chose, targeted at specific people they knew could swing an election. I cannot state emphatically enough how easy this was to accomplish. There is presently nothing to prevent any other country, or any hostile entity, from doing the exact same thing. We eat up whatever we see on social media, and we rarely follow it up with a fact check. That is true of people supporting both of our major political parties. It was not stunning in any way that Russia able to do this. What stuns me is that they didn’t exploit it sooner, as social media has been around since the early 2000’s.
As easy as it was to accomplish this, it’s equally easy to verify that it really happened, and more importantly that Russia and others will continue to do the same. Why would they not? It costs virtually nothing, and its effects are profound. This is the world we live in now. I don’t have the answer to protect our future elections, but I can’t imagine a more pressing issue to solve. The next election should be decided by a judgment of the American citizens based on the merits of competing visions and solutions for our future. Not by which foreign country has the best bots. If we don’t act on that, are we truly anything more than bots ourselves?
The Electoral College, ignoring all its other problems, is a mathematical mess. I certainly see what the framers of the Constitution were thinking when they created it, as it was consistent with the way they created the Legislative Branch – an attempt to balance a single nation against the power of the states. But the number of states and disparity in state populations were nowhere near what they are today. Modern Electoral Math overwhelmingly distorts the influence of a single vote depending on which state you live in, and we’ve seen it go against the popular vote twice in the last five elections. 2020 could be even worse. All of that said, it is the system we have, and we should all understand how it works. In preparing this little bit of bloggery, I’ve learned a bit more myself.
Here’s how it works today – most people know a lot of this, but most people also don’t know all of it. When you fill out your ballot on the Tuesday after the first Monday in November, in most states, you only see the names of the candidates on the ticket for President and Vice President, and so it feels like you’re casting your vote for them. But you’re not – you’re casting your vote for the electors associated with those candidates. On the first Monday after the second Wednesday in December, those electors then cast their ballots for the President and Vice President. So there’s one interesting fact – the American Presidency is not directly determined by the votes of tens of millions – it’s directly determined by the votes of 538. Now, of course, the electors pledge themselves to their candidates before the election, and so they are honor-bound to do as the voters told them. But there is literally (and I’m using the word “literally” correctly here, since I’m talking about the text of the Constitution) nothing stopping them from voting for somebody else – and in fact there have been 167 faithless electors in our past. One of them swung the first truly competitive election, causing John Adams to become President instead of Vice President to Thomas Pinckney, with the propagating effect of having Thomas Jefferson become Vice President to Adams. There were ten faithless electors in the 2016 election. Bottom line: the electors can basically do whatever they want.
So how do the electors actually vote? Well, they each get two votes, and they cast one for the President, and the other for the Vice President. So, an elector could cast a vote for candidates from different tickets, which has often been the case with faithless electors, as they often pick candidates that aren’t likely to win. As goofy as this process is, it was even worse before the 12th Amendment. That particular Amendment is extremely verbose (see below), but it’s biggest impact was on the relationship between the President and the Vice President. The original Constitution specified that each elector would get two votes, but that the top vote-getter would be President, and the runner up would be Vice President. George Washington had no real competition in his two elections, but in 1796, Adams and Jefferson had run fiercely against one another and were on opposite ends of the political system, leading to a rocky administration to say the least. Both the 1796 election and the 1800 election (which Jefferson won) also illustrated the kinds of tactics that this process allowed, as ties and/or their avoidance were manipulated to steer the election toward a desired result.
The 12th Amendment attempted to patch things up:
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;-The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President-The person having the greatest number of votes as VicePresident, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
I told you it was verbose.
Here’s another quirky thing about the Electoral College, which traces back to the original Constitution: an elector cannot cast both votes for someone from their state. This was of course originally intended to avoid biases in that regard, but it ultimately has no teeth, with the election cycle being so long in modern times. Dick Cheney was basically a Texas resident when he teamed up with George W. Bush, but there was plenty of time to get all the paperwork done to get around that.
So what determines how many electors a state has? As an avid fan of mathematics, here is where my blood boils. The formula is remarkably simple – it’s equal to the number of Senators you have plus the number of Representatives you have. Again – an attempt to bring some sort of balance into the math. But all it does is create a different imbalance. Every state has two Senators and at least one Representative. So that means Wyoming, the least populous state in the nation, has three electoral votes. But Wyoming would have three electoral votes even if only one person lived there. Meanwhile, the most populous state in the nation, California, has 55 electoral votes. That sounds fine, except 55 divided by 3 is a little over 18, and there are far more than 18 times as many people living in California as in Wyoming. In fact, the disparity is such that a vote in Wyoming counts three to four times more than a vote in California. Now – some have argued that voter turnout needs to be factored in there, but even when you do that, there’s a disparity factor of three to four between the “luckiest” and the “unluckiest”. There’s no getting around this math, and it’s the reason we’ve had two mismatches between the electoral vote and the popular vote in the past 20 years, and we will have more as long as a system optimized for the year 1789 is in place. Proponents of the Electoral College will argue that this is all because we live in a Republic and not a Democracy. But I will argue that is a red herring. The fact that we live in a Republic is not the problem. The problem is that we live in a Republic with consistently bad math that punishes voters for living in more highly populated states.
So, to summarize the Electoral College, you generally don’t even know who you’re voting for on Election Day, that person can in turn vote for whomever they choose, and even if they pick the one you wanted, your vote is guaranteed to mean more or less than that of a voter in another state. Other than that, yay for democracy!
Racism is a confounding subject. Every single human being, in the history of human beings, has had a personal bias toward their own. This should not be a shocker. It’s biological to protect your own from those that aren’t your own. Compounding that urge is the natural response of fear to things that are beyond our experience. But we all pretend like we don’t have these tendencies, for varying reasons. Some of us, typically those at an advantage because of race, are simply unaware, because we’ve never known what we haven’t known. Some of us are at a disadvantage because of race, which engenders an equal and opposite reaction to the biases of those in power. And some of us are fully aware and even privately proud of their racist tendencies, yet inexplicably find it worthwhile to pretend and proclaim they are not. The degree to which this last category will push their agenda while simultaneously not admitting quite simply that they are racist is staggering. Nowhere has this been more evident than in the evolution of the American Constitution, and how we’ve adhered to it (or not) over time.
The 13th, 14th, and 15th Amendments to our Constitution, centerpieces to what we’ve called the Era of Reconstruction, composed what would today be called a trilogy: a series of changes to the Constitution that facilitated equal rights for all races. “Facilitated” is the key word here. Resistance and loopholes proliferated before the ink was dry, and a century and a half later, it’s not clear how much progress we have really made, particularly with respect to the underlying biases that fueled the problem in the first place.
In the days defining America’s birth, racism (though not called out as such) was primarily discussed in the context of slavery. Slavery is one of those things that makes you wonder whether we’re worthy of being the dominant species on this planet. Human civilization, by various measures, has been in place on planet Earth for thousands of years. Yet a nation that considers itself at the forefront of everything didn’t find a way to constitutionally ban slavery until nearly a century into its existence, and in the last few percent of the time that our species has been “civilized”. By that time, one eighth of the U.S. population in 1860 were in chains. Even after Reconstruction, we stood and watched as racial injustices were perpetrated in other nations – ranging from restrictions on human rights all the way through genocide.
Back at the defining of our nation, our inability to resolve conflicts over slavery led one of the more bizarre deals in our history: the Three Fifths Compromise in the original Constitution, which effectively counted three out of every five slaves as a person for the purposes of determining population (and hence representation in Congress). So on the one hand, you had the North, who generally were more opposed to slavery, but also didn’t the South to have more representation in Congress; on the other hand, you had the South, who didn’t want slaves to have any rights, but also didn’t want to miss out on the head-counting. Think about that: our revered Constitution explicitly prescribed that slaves were less than people. Other “compromises” were struck over the years between the Revolutionary and Civil Wars, generally coinciding with the admission of new states to the Union, and whether these were free states or slave states.
Many people are aware of what Abraham Lincoln did at the beginning of 1863, when he invoked presidential war powers to issue the Emancipation Proclamation. But this act only freed slaves in the states that had seceded from the Union, and since they had seceded, it really didn’t free them in practice. Lincoln tried other means, which began the concept of Reconstruction, but ultimately it became clear that a Constitutional Amendment would be needed to resolve the issue. The tale of how the Amendment obtained approval in Congress is better told in many better places and media than here, but it did happen before Lincoln’s tragic assassination in 1865. His successor, Andrew Johnson, finished the work of convincing the necessary number of states to ratify, including a few that had seceded, but those states declared in the same breath that the Amendment didn’t authorize Congress to bestow any rights to former slaves, which means even at ratification it had dull teeth at best. For what it was worth, in December of 1865, the 13th Amendment became a part of our Constitution:
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.
A few things to note about the 13th Amendment:
It doesn’t just talk about slavery – but also about involuntary servitude (making it a more general statement about unfair labor practices) and prisoners (who don’t benefit from it once convicted).
It has that second section one so often sees in Constitutional Amendments: “Congress shall have power to enforce this article by appropriate legislation”. Problem is, if Congress doesn’t do that, then the effects of the other sections may not amount to much in the real world.
Following on (2), the South quickly moved to create a world that looked very much like the previous one. Slavery itself was essentially continued under a different guise, and laws were written to criminalize any attempt to change that societal imbalance. South Carolina’s Black Codes were a not-so-shining example.
To be fair, Congress did try to act, passing a Civil Rights Act in 1866 and other measures to counteract the Black Codes. But there was always another countermeasure. Peonage, for example – whereby debt was used to perpetuate servitude – and this was very easy to impose on a population that had never owned any substantial property. Just as the 13th Amendment became a clear necessity during the Lincoln administration, the 14th Amendment became a clear necessity in the ensuing couple of years, and few Amendments have had more far-reaching implications, including and beyond the issues it was immediately targeting. In an attempt to put the hammer down on slavery and its immediate successors, the 14th Amendment dramatically impacted the power of the states. Most of that impact came from Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
That’s worth reading many times over. It’s quite possibly the most concise and emphatic expression of human rights in the United States since the opening of the Declaration of Independence. One should always cross check against Wikipedia (or any other source, Internet or otherwise), but it does a nice job of summarizing the impact of this section on our country: “The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark decisions such as Brown v. Board of Education (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, and Obergefell v. Hodges (2015) regarding same-sex marriage.”
The dull teeth of the 13th Amendment, combined with the lukewarm efforts of Andrew Johnson, led Congress to determine they needed to sharpen those teeth, and this is what precipitated the development of the 14th Amendment. After numerous drafts and debates, it passed Congress in June of 1866. Ratification proved difficult as one might expect, although the time frame of its resolution was surprisingly quick. The Southern states, of course, initially refused, and Ohio and New Jersey compounded matters by rescinding their original ratification. But ultimately Congress passed a law that hinged representation on Congress to the ratification of the 14th Amendment, which forced the hands of the Southern states, and full ratification was pronounced on July 28, 1968. I could go on and on but I’m already exceeding your data usage limit with this blog post, so I beseech you to research the 14th Amendment on your own. “Profound” is an overused word, but the impacts of this Amendment are truly so. For completeness, here are the other sections:
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.
Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
While the 14th Amendment was pivotal to human rights in America, and has been used as the basis for voting rights as well, it did not directly tackle the rights of black Americans to vote. The 15th Amendment, the final installment in the “Reconstruction Trilogy”, took its best shot at that gap:
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.
The original Constitution doesn’t say much about who *can* vote. The 14th Amendment was our best shot at doing something along those lines. But the 15th Amendment, like several others we’ve visited in this series of blog posts, did its part in specifying who “couldn’t not” vote. Unfortunately, the South once again did its best to circumvent the Amendment, and the Federal Government did little to alter the status quo for many ensuing decades.
The Reconstruction Amendments continued to sport relatively dull teeth until 1965, when Congress enacted the Voting Rights Act, which finally implemented the prosaic “and Congress can pass some laws to make sure this happens” sections of these Amendments. The impacts were immediate and far-reaching, but as a testament to the notion that we really haven’t solved the underlying biases that necessitate even having such Amendments, the Voting Rights Act continues to require its own amendments to ensure it remains fully in effect. The most recent was in 2006, which renews the subscription for the Act’s special provisions to 2031. How enlightened will we be in 2031? It’s not even clear to me in which direction we are trending. Like most construction projects, Reconstruction has no end in sight.
Worry not, the Amendment posts will keep coming. But the recent firestorm of reaction to a work of fiction has compelled me to digress. So grab a horn full of ale and sit with me for a second. I’m going to address four groups of people here. Cue obligatory SPOILER WARNING now. Read no further if you haven’t seen the ending yet.
First, to George R.R. Martin and everyone who has worked on Game of Thrones for the past decade. We owe you a debt of gratitude for the endless work, creativity, and pouring of your souls into this saga. Only a story this magnificent could cause the cultural tidal wave that culminated in our collective obsession with the final season. The criss-crossing of all these profound character arcs through the years has been brilliant, and I couldn’t be more satisfied with how they culminated this past Sunday evening. Am I sad that Dany went to the dark side? Of course. But it was real, and presented with beautiful, Shakespearean tragedy, topped off with tremendous acting, which has been another hallmark of the show from beginning to end. The most common (and fair) critique I have heard of this show is that the last couple of seasons felt rushed. If you think about it, that’s much more a statement of praise than a statement of critique. We didn’t ever want this story to end. I didn’t either, but I’m also ready to place this exquisite gift on the mantle and move on to our own next chapter in life.
Second, to the people who loved this show and its ending as much as I have. Don’t devote too much energy to the most extreme of the critics. For one thing, extreme views are virtually impossible to reverse. Just look at our real world for proof of that. But more importantly, it’s far better to use that energy telling the cast and crew and everyone else involved with the show how much you appreciated it, and to carry your innate ability to appreciate into the personal relationships around you.
Third, to the people who started and signed “The Petition”, combined with those with nothing more profound to say than “the writing sucks”. I’m going against my advice in the previous paragraph by even talking to you, but it’s more therapy for me than any attempt to change the minds of the unappeasable. Some of you are mad because it didn’t end the way you pictured, because obviously it would have been easy to have the story end a hundred million different ways at once. Some of you are mad because you fell for fictional Dany in exactly the same way real-life nations have fallen for real-life dictators in their rise to power, because obviously the way we respond to fiction in no way matches how we respond to reality. Some of you are simply unable to enjoy anything because you spend all your time analyzing how you would have made it better – because, of course, that’s why you’re watching it instead of being paid by HBO to create and present it. And some of you are simply part of a massive problem in the real world that gets worse with every passing year – the general sense of entitlement to things that you have not earned, because even though all you’ve done for the past ten years is hit the buttons on your remote, obviously you should have just as much say in how this story ended. It might be worth considering what your reaction would be, if a million people signed a petition telling you what a horrible job you’ve done at whatever you’ve done for the past ten years. I’m guessing you might even feel a little bit wounded. It might also be worth considering what other petitions you could start, that might actually create change in our real world.
Finally, to the people who fall somewhere in between the two groups I just listed, who actually use carefully constructed arguments that make even an extreme praiser like me take note and understand your point of view. You embody the very spirit of the Parallax Machine, and you give me hope that we are not doomed to fall prey to our own Night King or Dragon Queen. But again, please carry that energy with you, back into the real world. Valar Morghulis, and Valar Dohaeris.
Every mid-April, CPAs and postal workers hunker down as everyone waits until the last possible moment to pay their taxes. The history of the tax in the United States is a rich (pun slightly intended) and complicated one. At least four clauses of the original Constitution dealt with the subject, a response to the tyrannous taxation that led up to the American Revolution. But law and money are both contentious subjects, and when you put them together, well, just sit back and watch the fireworks.
Much of the confusion around taxation has been surrounding the definition of “direct” vs “indirect” taxes in the Constitution. Direct taxes, as defined in Article I, must be apportioned among the states based on population – in fact this is stated in the same sentence that defines how many Representatives each state gets. Indirect taxes have so such restriction. Article I clearly defines Duties, Imposts and Excises as uniform throughout the United States – and until 1913, these taxes generated most of the federal revenue. But direct taxes have always been a gray area. The Constitution speaks directly to capitation, which was fairly well understood to mean lump-sum taxes (equal for each person) and property taxes.
So where does income fall in this spectrum, and especially when a lot of income is generated by the owning and selling of property? This has been a debate since the beginning, and in fact there was an income tax created in 1861 to fund the Civil War. After that expired in 1872, multiple movements and parties began to call for a permanent graduated income tax. Then, in 1894, the Wilson-Gorman Tariff Act was proposed, which included a tax of two percent on incomes over $4000 (which is a pretty decent salary today). This led a case that reached the Supreme Court (Pollock v. Farmers’ Loan & Trust Co.), where the high court ruled that any taxes on incomes that trace back to property (which includes things ranging from rents to dividends) were unconstitutional unless treated as direct, meaning apportioned by population amongst the states. This effectively killed the concept of an income tax at the time, because it went strictly down to wages, which would have unfairly burdened those that work for the ones that have all the wealth through other means. And so began the push for a Constitutional Amendment.
On February 3, 1913, four years after passage in Congress, the 16th Amendment was ratified by the state of Delaware, reaching the required 3/4 mark to make it a part of our Constitution:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
As I was researching this Amendment, a number of the search hits led to pages that question whether the 16th Amendment really gave our government the power to tax our income. When I read it, I have difficulty seeing that argument; the wording seems pretty straightforward. The only argument that seems reasonable is that it might seem to contradict the original Constitution in Article I – but the definition of an “Amendment” is that it changes something. The Supreme Court seems to have agreed throughout its many personalities since 1913, which is why we still enter every April with trepidation. Regardless of your stance, it’s difficult to see how the United States could have fought in World Wars, brought itself out of the Great Depression, or landed on the Moon without the revenue base from the income tax. That’s not to say federal money is always well spent, but for myself I can’t say my taxes would have gone to a greater good in my own hands. Although various makers of beer may disagree.
As noted in earlier posts here, checks and balances are at the heart of American democracy. Our government was consciously designed to provide resistance when any one entity attempted to gain too much power. Being under the thumb of a tyrannical monarch will tend to make people think a bit more about this type of thing. One of the most fundamental examples of checks and balances is our bicameral legislature – a.k.a. The House and The Senate.
The House emphasizes the power of the people by volume: the more people in your state, the more Representatives you get. Of course, in practice, nothing is immune to human lust for power, so there is a never-ending battle within each state to redefine who gets counted where.
The Senate emphasizes the power of the state: every single state gets exactly two Senators. Or to paraphrase Monty Python, the number of the counting shall be two. Three is right out!
It really can’t be overstated how important this particular balance has been, with the House serving (more or less) as the voice of the people, and the Senate playing a pivotal role in protecting the sovereignty of the individual states. What that has meant has shifted over time. It began with the original Constitution, which specified that Senators would be elected by the state legislatures. The vast majority of the framers of the Constitution believed this was the best way to ensure truly comprehensive representation: the House represented the interests of the “common folk” and the Senate represented the interests of the “better informed” by virtue of leaving elections to those who were already engaged in political discourse. This very closely matches what the United Kingdom still does to this day: a House of Commons and a House of Lords. But in the U.S. Senate, the “House of Lords” must be re-elected every six years.
The arrangement worked out all right for a little while, but guess what, it became increasingly corruptible. You can’t take us anywhere. There were a couple of key problems – which amazingly didn’t rear their ugly heads as often as one might expect. First, there was a perception – and sometimes a matching reality – that state legislatures were electing U.S. Senators in smoke-filled rooms without any true accountability to the needs of each state. The second issue was the potential for deadlock; if a state legislature couldn’t decide as a majority on their next Senator, the seat simply remained open. This happened for years in a couple of cases. Momentum built into the late 1800’s to solve the problem with a Constitutional Amendment, and the House was always in favor at that point – consistently passing the resolution in every session as the Senate subsequently ignored it each time. It wasn’t until a bunch of Senators who opposed the measure were ousted that the tide changed for good. It was proposed for the last time in 1912 and ratified in 2013:
Clause 1. 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.
Clause 2. When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
Clause 3. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
While the 17th Amendment changed the way our Senators are elected, it did not change the fundamental ideas of balance between the two houses of Congress, and balance between the federal government and the states. Who has the advantage in this system has evolved over time. When the 17th Amendment first passed, it protected a number of Democratic Senators. But today, power to the states (i.e., the Senate) is probably the only reason the Democrats do not control both houses. Regardless of your affiliation, consider the dynamics of the 2018 midterm elections. A very large number of House seats switched parties to the Democrats – signaling the will of the “common folk”. But the Senate actually increased in Republican control – signaling the will of the “states”. This isn’t very complicated: red states like Idaho and North Dakota get just as many Senators as blue states like New York and California. And right now there are simply more red states than blue states. On the flip side, state sovereignty is what allows blue states to resist the current Senate and President. To now quote Sting, “regardless of ideology”, we should treasure the checks and balances of our government. They play a massive role in preventing ANY of us from getting carried away.