College Education

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!

Sometimes numbers do lie.

Reconstructing America

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:

  1. 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).
  2. 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.
  3. 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.

Eternal vigilance.

A Blog Post Has No Name

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.

If you squint, it looks like a dragon.

A Taxing Subject

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.

Change we can believe in.

Balancing Checks

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.

It’s all the same when you get right down to it.
Image by Peggy und Marco Lachmann-Anke from Pixabay 


Dry Humor

It’s remarkable that we really thought this one was going to work:

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Thus spake the 18th Amendment to the Constitution, ratified in January of 1919, a year that saw many cellars filled in anticipation of the coming apocalypse. We’ve already explored the 21st Amendment a bit, which repealed the 18th. As I was digging into the 18th Amendment and what led to it, I expected to find that many states had tried this out in the preceding decades. What I did not expect was to discover how many other countries tried to do the same thing at roughly the same time in history, including Canada, Finland, Iceland, Norway, and Russia. All northern nations, where at certain times of year there seems to be little else to do but drink.

Stocking up

The forces and reasoning behind this Amendment are not that difficult to guess. But the sheer arrogance in the face of human history is staggering (not unlink a drunk person). One could make a reasonable argument that civilization would not have taken hold in the absence of drinking. There isn’t much in the way of records definitively chronicling why we decided to stop hunting and gathering, and chose instead to start planting roots and farming. But at some point we figured out grains and fruit did something wonderful if you let them ferment, and that had to play some sort of role in our decision to settle down.

The Sumerians made a mean beer by all accounts. The Romans were famous for their love of wine. And did Jesus turn wine to water? No, quite the opposite. The Belgians have been making Stella since the 1300’s. One of America’s founding fathers was Sam Adams. What the hell were these people thinking in the 1910’s?

Equally interesting is the text of the Amendment itself. It speaks to making, selling, and moving around of alcohol. But it didn’t become illegal to drink. That alone speaks to the doomed nature of the 18th Amendment. The only reason not to make it illegal to drink was that it wouldn’t have otherwise passed, which means people were still going to drink, which means they were eventually going to get it by illegal means. And then we were gonna have to repeal it, which of course we did in 1933. 

So basically, the United States went to a party, blacked out, woke up 14 years later with a massive hangover, took some ibuprofen, and then went about the rest of the day’s business as though nothing had happened.

#beenthere

The Better Half

There are a lot of ways to think about how long it took for us to arrive at the year 1920. As a universe, it took something like 13 billion years, give or take. As a solar system and a planet, something around 4.5 to 5 billion years. As a planet with life on it, something closer to 4 billion years. As primates, a few million years. As a species, a few hundred thousand. As a civilization, a few thousand. As a nation, 144. As a nation with a Constitution, 131. By any of these measures, it boggles the mind how long it took to state unequivocally that half our adult population could vote.

Couple that with how long it took to extend the vote to all races, to end slavery, and to act against genocide – and then couple that with the simple fact that these same wrongs are still being done in parts of the world today, and not as far from home as you might think – suffice it to say we are still in our infancy as an enlightened civilization.

Nonetheless, the 19th Amendment, passed by Congress in 1919 and ratified by three quarters of the states in 1920, righted one of these wrongs for one nation:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

My first thought when reading the actual text here was that maybe “gender” would have been a better word than “sex”. I’m wondering if there’s ever been a court challenge suggesting this Amendment is really only referring to the voting rights of virgins.

It should be noted that the length of time it took to amend our Constitution in this way was not for lack of trying. The original Constitution essentially left it to the states, who typically tied voting rights to the owning of valuable land, which not only eliminated slaves and most women, but also poorer men. Actually, New Jersey originally *did* give women the right to vote back in 1776. But they revoked it in 1807 when it was believed that men were dressing as women to cast second votes. Voter fraud is by no means a new conversation in American politics.

Although moving at a pace that would try a glacier’s patience, piece by piece some progress was made toward women’s suffrage over the decades, particularly after the Civil War. Elizabeth Cady Stanton and Susan B. Anthony were the early pioneers in pushing for a Constitutional Amendment – first arguing that existing Amendments applied, and then seeking a new one. Anthony actually voted at one point, but was subsequently arrested and convicted for it. Some western states, beginning as territories, entered the Union with more progressive laws; Wyoming was actually the first to guarantee women the right to vote in their constitution – followed by Utah, Colorado, and Idaho.

Initial attempts at a new Amendment began in the 1870’s, but momentum didn’t really build again until the 1910’s. It passed in the summer of 1919, and Tennessee put it over the top in August of 1920, by the narrowest of margins in their House of Representatives: 49-47.

The polls were not flooded with women voters right away, as there were other institutions that made it difficult to vote, including the poll tax that was later repealed by the 24th Amendment. And of course there was an almost immediate challenge by one of the states that didn’t originally ratify the 19th Amendment (Maryland), which was shot down by the Supreme Court in 1922. Since then, there hasn’t been much of a challenge, but there’s something eerily believable about worlds like the one described in “A Handmaid’s Tale”. As long as it took us to get to 1920, we shouldn’t assume a mere 99 years later that we’ll never get it wrong again. Eternal vigilance is indeed the price of freedom.

Lady Liberty, unable to vote until 1920 (Photo by bruce mars from Pexels)

Ducks in a Row

#lame

That hashtag has a certain connotation today. But back in the early 1900’s, when Twitter was still in beta testing, it meant something slightly different. A big topic of discussion then was the issue of “lame duck” politicians. I already littered the blogosphere with that topic under the post about the 22nd Amendment, but the issue has quite a lengthy history (and you may recall I prefer a purely “duckish” solution to the problem).

To revisit, a “lame duck” is a politician whose remaining days in office are precisely numbered, either because he or she has hit a term limit, or he or she lost the most recent election. I should add a footnote to that: the term has historically referred more to people who actually lost. But when Congress recently neutered an attempt to nominate a Supreme Court justice nearly a year before the end of that President’s term, I submit the definition of “lame duck” was effectively broadened – regardless of your position on that particular happenstance.

Prior to the ratification of the 20th Amendment in 1933, newly elected Presidents and Congresspeople couldn’t get started until the March following the election. Meanwhile, the old Congress and President would have a good three or four months to wreak havoc, or to do nothing – neither of which is a good return on our tax dollar. As an extreme example of the problems this can cause, when Abraham Lincoln was elected in 1960, he could do nothing for three months while seven states seceded from the Union as a prelude to the Civil War.

The timing problems were actually even worse than that for Congress; they were required to start their sessions in December, so the newly elected House of Representatives as an example could not begin their first session until thirteen months after they were elected. So they got one full-year session and one three-month session, with many Representatives being lame ducks during the latter. A Constitutional Amendment was the only way to solve this problem, but it took many tens of years and many tens of tries before one finally made it through. The final push took ten years on its own, led by Nebraska Senator George W. Norris through multiple sessions of Congress before its passage in 1932 and ratification in 1933.

The 20th Amendment begins thusly:

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Perhaps the most striking aspect of Section 1 is the use of “3d” instead of “3rd”. Which then made me wonder, when did we start using “3rd” instead of “3d”? From what I could gather in a quick Google search, use of the “3d” convention waned after the 19th century. Or is that 19h century? One can only imagine the passion and determination of aging “3d” supporters during its inevitable decline, imploring us all to respect tradition and gaining one final victory through its inclusion in a Constitutional Amendment. “3d”, meet immortality. But I digress. I’ll do my best to make sure it doesn’t happen a 2d time.

Section 2 of the 20th Amendment states:

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Combined, in addition to addressing lame duckery, Sections 1 and 2 ensure that a new Congress is available to deal with any ambiguities that arise in the Presidential election. More on that below…

Sections 3 and 4 take a sharp turn into Presidential succession:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Remember the 25th Amendment? That one has generally become the go-to resource on Presidential succession matters of late. But the 20th Amendment could become much more relevant depending on what happens in 2020. The current political climate, along with the emergence of multiple potential independent candidates, could lead to a situation where no one gets the requisite 270 electoral votes to win, in which case it would fall upon Congress to resolve the matter. This underscores how truly stuck we are in a two-party system, by the way. Even if an independent candidate were to gain equal ground with the Democratic and Republican candidates, no one would get enough electoral votes, and the matter of who should take office would be decided by Congressional partisan politics – which offers no discernible path to victory for an independent candidate. Which, in turn, sure seems to make independent candidates look like they’re doing something naughty in public rather than actually accomplishing anything. But that’ll likely be the subject of a 2020 post.

Sections 5 and 6 of the 20th Amendment are basically cleanup:

Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

So what’s my biggest takeaway from all this? Well, for one thing, it makes me look at Mount Rushmore in an entirely different light. All four faces there are from Presidents who had unique challenges and/or contributions relevant to the idea of presidential succession. George Washington – perhaps out of nothing more than sheer exhaustion – set the two-term convention that didn’t become law until the ratification of the 22nd Amendment. Thomas Jefferson was consistently outspoken about the need for some form of term limits (including at the conclusion of his own second term). Abraham Lincoln was hamstrung by the faulty system that led to the 20th Amendment, and his assassination fed the confusion that wasn’t fully resolved until the ratification of the 25th Amendment. And Theodore Roosevelt actually ran for a third term, only to lose to Woodrow Wilson, four years after his first two terms – one must wonder if the 22nd Amendment would have been accelerated had that happened.

In my opinion, it’s no coincidence that presidential succession has been an important topic at the same time our most revered leaders have served. But it’s also about the times in which those leaders have served, and we may be in such times again in 2020.

Do you think they’ll ever get it right, Abe? I don’t know, Teddy, I just don’t know.

Bottoms Up

This one is best discussed over a drink.

There have been 27 fully ratified Amendments to our Constitution. But only one Amendment (the 21st) repealed an earlier one (the 18th). The 18th Amendment will, of course, be the focus of a future post here. But it’s difficult to say much about the 21st Amendment without that context, especially if you’re only reading Section 1:

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Even if you didn’t know the numbers going in, you probably now know already what the 18th Amendment was all about: it was the beginning of Prohibition. It’s important to note what that meant: the 18th Amendment did not outlaw owning or consuming alcohol. It outlawed manufacturing, transporting, and selling alcohol. It also had a grace period of one year after ratification by the states. So if you had a stash in 2019 and/or stockpiled before 2020, you could still drink legally for a while, but every sip was that much more precious.

When Prohibition began, most people considered it “a noble experiment”; alcohol has been a source of many problems since the earliest days of civilization. But it didn’t take long for folks to realize Prohibition wasn’t working as intended. Even though alcohol consumption actually decreased dramatically during Prohibition, it didn’t go away, and the worst of its effects were amplified. That was exacerbated by the black market and associated rise of organized crime around it. Eventually it became just as easy to drink as it had been before, even in terms of cost, but now there was rampant gang violence to go with it all, and some of the funds were used to prevent any real enforcement at the local level. Imagine how bad things would have become if it weren’t for Kevin Costner and Sean Connery.

If Section 1 was all there was to the 21st Amendment, there wouldn’t be much more for me to say here. But Sections 2 and 3 are far more interesting. Here is Section 2:

The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

There had been a great deal of work far before Prohibition to restrict the use of alcohol at the local or regional level. Much of what led to the 18th Amendment in the first place was in fact a grass roots movement of sorts. So while the 21st Amendment removed blanket restrictions in the country, it left the door open for the states to handle things as they saw fit. And so many of them did, effectively doing what they could to remain “dry”. I don’t know about you, but I often think of Utah when I hear the phrase, “dry state”. But Utah was in fact the 36th state to ratify the 21st Amendment, which at the time was enough to put it over the top (Alaska and Hawaii had not yet become states yet, so 36 was the “three quarters” threshold).

The last dry state was Mississippi, which finally threw up its hands (one of them presumably holding a beer) in 1966, although the state never ratified the 21st Amendment. To date, only 38 states have ratified it. Most of the others took no action on it. Including, unbelievably, Louisiana. If you’ve ever been on Bourbon Street at any time of day and year, you know how ridiculous that is.

Section 3 of the 21st Amendment is interesting in its own way:

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Here, as with the 22nd Amendment, Congress put a time limit on how long it could take for full ratification by the states. But even more interesting is the specification that it be ratified by state conventions, and not by state legislatures. Article V of the original Constitution left the door open for such an approach. In fact, the original Constitution itself was ratified by state conventions. For the 21st Amendment, the framers were concerned that the still powerful lobby behind the 18th Amendment would keep state legislators from publicly declaring their support to repeal it. Using conventions instead freed the legislators from facing that choice. As a result, after the 21st Amendment was passed in February of 1933, it was fully ratified by that December.

Ok, now I think there really isn’t much more for me to say here.

Except,… cheers!

Pretty sure nobody knows my name in this place. And that’s ok.

Of Mallards and Monarchs

In 1940, something happened that had not happened before in the history of the United States. A President pursued and secured a third consecutive term in office. Franklin Delano Roosevelt was that man, and the rationale was that we needed continuity of leadership during World War II. Roosevelt’s specifically stated goal was to avoid entry into the war, but of course we all know how that turned in December of 1941. Winston Churchill’s tenure was similarly extended across the pond, for similar reasons.

Our very first President, George Washington, set the precedent of retiring after his second term. That precedent was followed for a remarkably long time without requiring an Amendment to the Constitution. But after World War II and Roosevelt’s death in office, the Republican Party pushed hard on the 22nd Amendment, passing it in 1947. It was ratified by two thirds of the states in 1951, with a grandfather clause for President Harry Truman, who opted not to run for a third term anyway. Here is the text of the 22nd Amendment (Section 1):

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

So, the convention that was mostly followed before Roosevelt became law, and now every President who wins a second term is officially a “lame duck”. Ducks don’t walk that impressively to begin with, so to be a lame one is decidedly embarrassing.

An interesting twist to the 22nd Amendment is in Section 2:

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

In other words, Congress set a timer on whether this one would go into effect. We put a limit on how long we would be willing to consider putting a limit on something.

The 22nd Amendment attempts to strike a delicate balance. Allowing just one term would make the President a duck from the inauguration onward. Allowing a President more than two terms, as became a fear during the Roosevelt presidency, begins to look more like a monarch, which is what we initially ran from when we became a nation.

I have pretty strong feelings about the concept of reelection. I believe it adds motivation to do things that aren’t in the best interest of the country, so that one may remain in power for a bit longer. I also believe that applies at all levels of government. The argument against that, of course, is what if you get someone in there who really is good. But I would argue that we’d eliminate a lot of people who really aren’t good from the process if we made it impossible for them to stay in power for more than one term. Suddenly you have two, four, or six years to do your best, and then you’re done, for good. I believe we would find in such a world that there are a lot more really good leaders out there, and each of them would get their fair turn to advance the greater good. We as voters then might also stop tying our allegiances to individuals instead of ideas.

Counter to that view, there have been a number of attempts to repeal the 22nd Amendment, and some Presidents have stated wishes along those lines, including most recently Barack Obama. But if eight years isn’t enough time to get the job done, why would twelve or sixteen be the magic number? One might even expect the opposition to the President’s agenda to grow with the length of his or her term anyway.

So yes, you’re reading me right: I think the 22nd Amendment was a good first step, but it didn’t go far enough, either in scope or in severity. Unleash the ducks!

Quack, quack.

Take me to your leader