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

Tyranny Inside the Beltway

How is that for click-bait? Guess what – this post isn’t about any particular person in our nation’s capital. This post is about our nation’s capital itself. Ever since the District of Columbia was created, its residents have held fewer voting rights and less representation than those in any of the states. Even the 23rd Amendment didn’t completely fix that problem.

But before we delve into that, let’s talk about something far more astonishing: this is the tenth post to emerge from The Parallax Machine. Nine posts ago, I never imagined I would be arriving at this moment. If you had suggested such an outrageous thought, I would have laughed heartily and mussed up your hair. Yet here we are, and there’s a real possibility there will be ten more posts. I’ll give you a moment of silence to let that sink in.

Wow. Ten posts.

Ok, back to the 23rd Amendment. If you’ve been in the DC area recently, you may have noticed the locals’ license plates, many of which bear the phrase, “Taxation Without Representation”. That phrase dates all the way back to the days leading up to the American Revolution (although it was originally coined by the Irish). The most famous use of the phrase was by a Boston politician named James Otis, who proclaimed, “Taxation without representation is tyranny.” This was of course aimed across the pond at King George, who kept coming up with new ways to tax the colonists without giving them any say in their government. One thing led to another, Tea Party, Declaration, war, victory, yadda yadda yadda.

A few years later, some soldiers who hadn’t been paid protested at the Continental Congress and effectively held the Government hostage for a brief moment in time. It didn’t get as ugly as it could have, but the early leaders of our Government decided they needed to have full jurisdiction over the region in which they were situated (not just to avoid future such incidents, but also to avoid giving one state more apparent power by hosting the nation’s capital). So they wrote the concept of a District for the nation’s capital into the Constitution itself. One thing led to another, and boom, District of Columbia. Congress moved in at the beginning of 1800 and officially created the District in 1801. As soon as the District exited any particular state, it lost the right to vote, to be represented, and to ratify any changes to the Constitution. Protests were immediate, and a few folks did mention, “Hey, wasn’t this what we didn’t like about King George?”

Different ways of governing DC were tried over the ensuing decades, but none of them really solved the representation problem. It took all the way until 1961 before an attempt was made, and that attempt became the 23rd Amendment:

The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Excellent. Residents of DC were now allowed to vote for the President and Vice President. But…

DC can never have more electoral votes than any given state – granted, it’s basically one city, but it does have more people than Wyoming and Vermont. DC has a single delegate to the House of Representatives, but that delegate can only vote on procedural matters and in committees, and not on bills brought to the House floor. DC has no representation in the Senate. And residents of DC are still required to pay federal taxes just like residents of any state. To sum up, DC residents are fully taxed without full representation. Tyranny inside the beltway. Long live the King!

I lived in the DC area for a few years (although not in DC itself), and I often travel there for business. Just walking around town, you’re not going to hear too many conversations about taxation without representation, even though scores of cars will drive by with that phrase on their plates. But I have to imagine whenever there is an important vote in Congress, more than a few DC residents bristle at their inability to have any real impact. Then again, I do the same thing in Colorado. Frankly, these days, it’s not entirely clear how many of us are truly being represented.

Meanwhile, DC does have a bunch of free museums.

You Get What You Pay For

It’s humbling, if not downright embarrassing, how much I never knew. Almost as embarrassing as some of the Amendments we actually had to write, in the 20th century, no less. At one time, in some states, Americans had to pay to vote. What?

It was called the poll tax, and it originated in the aftermath of the Civil War and Reconstruction, as a means of countering the gains that African Americans had made under the law, beginning with emancipation from slavery and ending in the right for all men, of any color, to vote. Charging a fee for voting was overtly engineered to keep the newest eligible voters from exercising their right, and it remained lawful to do so for decades, until the ratification of the 24th Amendment in 1964:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

That was Section 1 of the Amendment. Section 2 was the usual “and if we have to write more laws to ensure that, we will” language. We just can’t be trusted, can we?

Think about the time scales here. The United States became a nation in 1776, with a fully ratified Constitution in 1989. While the Declaration of Independence opened with the famous assertion that “all men are created equal” (a statement already focused on just one half of the population), it took 89 years to Constitutionally decree the end of American slavery, and another five years to grant voting rights to men of all races. It only took 20 years after that for some states to being charging a fee to vote, but it took 74 years for us to say as a nation that was no longer acceptable, via the 24th Amendment. And then it took another two years for the Supreme Court to rule that poll taxes were unconstitutional at all levels of government (by citing the 14th Amendment; the 24th Amendment only applies to federal elections). And I haven’t even talked about gender yet… that’s another Amendment, and a future post. For those of you scoring at home, that’s a total of 190 years to get it all straightened out.

And of course, it’s fairly easy to construct an argument that we’re not really done yet. It didn’t take long after the 1960’s for laws to change regarding the influence money can have on election campaigns – which may have more than canceled out the gains of the 14th Amendment and others like it. We’re also gaming the system with redistricting and continual changes to the state laws surrounding elections. It may never truly end; if there is one thing about which humans have been consistent throughout recorded history, it is the sheer terror of losing power once it’s been gained. People with the means will pay hefty prices to avoid that, but in the end we are all stuck with the bill.

Can’t tell if he’s pleased or not.

Find and Replace

Checks and balances. That phrase describes one of the most important aspects of the United States Government – undoubtedly born from a deep desire to avoid the tyranny that characterized British rule of the colonies before they declared their independence. Checks and balances are the way we try, as best we can, to avoid any one person or small group of people from gaining too much power over the course of the nation at any given time. But whether spoken or unspoken, purposefully or subconsciously, those in power are continually trying to defeat checks and balances, because, well… they know they’re right and everyone else is wrong. Most of us can relate to that.

A healthy tension between the three branches of our government generally means a healthy country. It may seem in that case like nothing ever gets done, but sadly that is often preferable to too many one-sided things getting done. The best breakthroughs in government happen when all three branches work together – and often that has taken shape as Amendments to our Constitution. The 25th Amendment is a good example: what do we do with succession of leadership in the executive branch?

Wonder what’s going on down there today…

The original Constitution did speak to presidential succession in Article II, Section 1, Clause 6:

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.

There are a few areas of ambiguity there: it does not speak to succession of the vice presidency, nor to what extent or how long the Vice President retains the powers of the President. It also doesn’t define the range of conditions that would lead to “the Removal of the President from Office”. Impeachment, of course, is once such condition, but are there others? The ambiguities in turn led to a few periods of confusion in our history. When William Henry Harrison died in office in 1841, his Vice President John Tyler took over, and Tyler argued he was the President, not just the “Acting President”. Woodrow Wilson was secretly unable to fulfill his powers for the last several months of his presidency due to a stroke (this would seem unlikely to happen in today’s Twitter-driven society). And many vice presidencies have been vacated over the years, with no clear and consistent way of defining the replacement.

The 25th Amendment, passed in 1965 and ratified in 1967, has four sections that attempt to clarify the picture when a President or Vice President is “Control-X-ed”…

Section 1 clarifies the Harrison/Tyler conundrum – ok, fairly straightforward, and this was invoked when Gerald Ford took over for Richard Nixon in 1974:

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2 extends the clarification to the vice presidency – again, fairly straightforward, and this was invoked twice – once when Ford assumed the vice presidency under Nixon after Spiro Agnew resigned, and again when Ford appointed Nelson Rockefeller as Vice President:

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3 makes it equally clear how the President can confer his powers onto the Vice President when he or she agrees to be unfit for the office at a given time – this has since been invoked by Presidents Ronald Reagan and George W. Bush due to medical procedures:

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4 is where the Constitutional deuce hits the turbine – what if the President doesn’t want to go but it really is time? This has not yet been invoked:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

If you’ve been listening to the political dialogue over the past couple of years, there’s a good chance you’ve heard the 25th Amendment discussed, and the focus has been on Section 4. This is just another example of how high the tensions are between the parties and the branches of government right now – perhaps as high as they have been since the Civil War. In this polarized atmosphere, it is not surprising that the 25th Amendment has been raised, nor is it out of the question that it could even be invoked at some point. There have been, and there will be again, political leaders that refuse to go quietly. I’m not going to speak here about arguments for or against in the current situation. But we can probably all agree that an invocation of the 25th Amendment would create an even uglier Washington than the one we currently see. In many ways, the 25th Amendment touches the envelope of how far a democratic republic can be pushed. The question now is whether other forces will take us to that same place – and if they do, invocation of the 25th Amendment would only be the beginning of the story.

Better Early Than Never

It is a fundamental human need, to be heard.  WHICH IS WHY WE SOMETIMES TALK IN ALL CAPS.

On a personal level, each of us needs that special someone to hear what we have to say.  On a social level, each of us needs to get a word in edgewise at big holiday meal gatherings.  On a societal level, each of us wants to have a say about who governs us and how.  And some societies actually give us that say, by way of that crazy little thing called voting.

Seeing as how voting is fairly important in a democratic republic, it’s not all that surprising that a few of the Amendments to our Constitution have centered around that subject.  Generally speaking, a series of Amendments over the past couple hundred years have expanded the number of people that are allowed to vote.  The last of these was the 26th Amendment, ratified in 1971, which lowered the minimum voting age from 21 to 18 years.

As you may have read in the last blog post, the 27th Amendment took the longest amount of time to ratify after approval by Congress – over 200 years. The 26th Amendment took the least amount of time – about 4 months.  What made this one such a slam dunk?  As with so many things in life, it’s all about timing.  The fundamental argument behind the 26th Amendment is “old enough to fight, old enough to vote”.   That point of view originated in World War II, when President Roosevelt lowered the draft age to 18.  It steadily gained momentum over the ensuing decades, but it wasn’t until the 1960’s that the United States was engaged in a war unpopular enough to move the needle:  Vietnam.

Like many Amendments before it, Amendment 26 also grew out of a dispute between branches of the government, and between the federal government and the states.  To address the “old enough to fight, old enough to vote” sentiment, Congress passed the Voting Rights Act in 1970, which set the minimum voting age at 21 across the nation.  But a number of states objected, and the case went to the Supreme Court under Oregon vs Mitchell, also in 1970.  The Supreme Court subsequently ruled that Congress had the authority to set the minimum age for federal elections, but not for state and local elections.  While this sounds like a partial victory for the states, it was really a complete defeat, because any state that wanted to keep the minimum voting age at 21 now had to run two sets of elections, and wastes of money like that don’t go over too well at home.  And so when the 26th Amendment was approved by Congress, even states that didn’t like it fell in line rather quickly.

Old enough to graze, old enough to vote

Let’s get back to that underlying sentiment behind the 26th Amendment for a moment: “old enough to fight, old enough to vote”.  It appealed very viscerally during the Vietnam War, and it still does today.  But there were and are valid arguments against that notion.  The skills required to perform a narrow set of tasks during a battle are inarguably different from those required to make an informed decision about the political path of the nation.  In fact, I found myself having trouble taking a side on this one as I researched it.  So I figured I’d try something radical and think about what impact the 26th Amendment had via *me*.

I turned 18 in 1987, a year and a half before the next big round of elections, including that for the President.  Did I bring a new point of view into my votes during those elections?  The answer is a resounding no – I brought my parents’ points of view.  They were staunchly Republican throughout my upbringing (my mother continuing that general sentiment after my father passed away just 3 days before my 18th birthday).  And so, guess what, I was a Republican when I was 18.  In fact, I was a Republican when I was 21.

Now, I’ll be the first to admit I did not get the full college experience.  When my father passed, one of the countless repercussions was insufficient money to live on campus, and so I lived at home for my entire undergraduate education.  I had a fairly small circle of friends as well, so there weren’t a whole lot of external pressures to change my point of view.  But the bottom line is probably not all that different from a lot of other folks – 3 years of societally-defined adulthood is not necessarily enough time to shape your own new views on the world.  In cases where it is enough time, other factors probably cause that shaping to be radically different from what you learned from your parents.  So maybe half of us simply parrot what we were told and half of us go to the opposite extreme.  And therefore the net effect of lowering the voting age is a complete wash.

Despite that unassailable steel cage of logic I just constructed for you, I still find myself in favor of the 26th Amendment:

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Why?  Simple: “old enough to fight” can be reworded in any number of ways: old enough to be hit by a bus, old enough to contract a terminal disease, old enough to be struck by lightning…  every one of us, as soon as reasonably practical, should have the chance to say how the world should be run, at least one time before we are unceremoniously ushered out of it.

Better early than never.