NOTE: The Eleventh Amendment was the first amendment added to the Constitution to change a part of the original Constitution and, at the same time, the first amendment added to overturn a Supreme Court decision.
NOTE: As written at the 1787 Constitutional Convention, Article III, Section 2 extended the jurisdiction of U. S. courts to cases “between a state and citizens of other states” and to cases “between a state, or the citizens thereof, and foreign states, citizens, or subjects.” In the debate over the ratification of the new Constitution, some opponents argued against these provisions on the grounds that they violated “the doctrine of sovereign immunity” which asserts that a sovereign government cannot be sued without its consent. In 1793, the Supreme Court under its first Chief Justice John Jay heard Chisholm v Georgia, a case brought by a citizen of South Carolina against the state of Georgia. The Court ruled in Chisholm’s favor. After Georgia vigorously protested the Court’s action, Congress by overwhelming votes in both houses proposed what became the Eleventh Amendment, and three-fourths of the states quickly ratified it. The amendment alters Article III, Section 2 and specifically denies federal courts jurisdiction to hear suits brought by citizens of one state (or of another nation) against another state.
NOTE: In the nation’s first two presidential elections (1788 and 1792) the system worked because of George Washington and because the nation had only one political group, the Federalists. By 1796, however, there were two political groups, the Federalists and the Democratic-Republicans, and George Washington had departed the nation’s government. The fourth presidential election in 1800 revealed problems with the 1787 presidential election system. For the only time in the nation’s history, there was a tie in the electoral vote between Thomas Jefferson and Aaron Burr, both members of the Democratic-Republican Party. Pursuant to the Constitution, the election was thrown into the House of Representatives controlled by the Federalists who preferred neither Jefferson nor Burr. Finally, voting by states, as provided by the Constitution, on the 36th ballot, the House chose Jefferson to be the nation’s third President. In 1803, Congress proposed the Twelfth Amendment, and it was ratified by three-fourths of the states in June,1804.
The Twelfth Amendment made these major changes in Article II’s presidential election system: (1) Each elector in the electoral college has one electoral vote for President and one electoral vote for Vice President, and voting by the electors for President is separate and distinct from their voting for Vice President; (2) if no candidate for President wins a majority of the electoral votes for President, the House of Representatives voting by states with each state having one vote chooses the President from among the top three electoral vote winners, instead of from the top five as Article II had originally provided: (3) if no candidate for Vice President receives a majority of the electoral votes for Vice President, the Senate, with each senator having one vote, chooses the Vice President from the top two electoral vote winners; and (4) no person constitutionally ineligible to be President can be Vice President.
NOTE: The “fugitive slave” provision of Article IV, Section 2 of the 1787 Constitution was thus repealed.
Section 2 provides: “Congress shall have power to enforce this article by appropriate legislation.” Note: Congress began debating a proposed constitutional amendment abolishing slavery in the entire nation in 1864, and the proposed amendment passed the Senate. However, not until 1865 were the Republicans in the House able to persuade enough Democrats to vote for the proposed amendment and secure the required two-thirds vote. Disagreement arose immediately over the meaning of the amendment, particularly the extent of Congress’ authority to enforce it through “the enforcement clause” of Section 2. Some argued that all the amendment did was to end the “master-slave” relationship and that consequently no more federal action was needed or warranted. Others argued that the amendment required further action by Congress to assure full and equal rights for former slaves.
NOTE: For several reasons, many constitutional scholars argue that, aside from the Bill of Rights, the Fourteenth Amendment is the most used, significant, and far-reaching amendment ever added to the Constitution.
NOTE: As written at the 1787 Constitutional Convention, the Constitution said nothing about who was a citizen of the United States. In the 1857 case Dred Scott v Sanford, the Supreme Court declared that slaves were property and were not and could never be citizens of the U. S. The first sentence of the Fourteenth Amendment for the first time in the Constitution defines American citizenship, and, for only the second time in American history, the constitutional amendment process was used to overturn a Supreme Court decision, namely the Court’s decision in Dred Scott v Sanford.
Fourteenth Amendment: Section 1 -- Limitations on the States – Privileges or Immunities Clause (1868)
NOTE: Article IV of the Constitution has an identical phrase, but it guarantees that states will treat out-of-state citizens the same way they treat their own citizens.
NOTE: This first of these three important limitations on the states speaks of “the privileges or immunities of citizens of the United States” while the other two limitations spelled out in Section 1 speak of the states being forbidden to deny “any person” due process of law or the equal protection of the laws.
NOTE:Fourteenth Amendment viewed the privileges or immunities clause as the most important of the three clauses placing limitations on the states. They believed that the privileges or immunities clause required the states to respect all of the rights specifically listed in the first ten amendments (the Bill of Rights). The Supreme Court in the 1873 Slaughterhouse Cases rejected that view and interpreted the clause so narrowly that, as a result, the clause was made virtually useless forever.
NOTE: The Fifth Amendment also contains a due process of law clause. The difference is that it applies to and thus limits the government of the United States whereas this same provision in Section 1 of the Fourteenth Amendment applies to and limits the states.
NOTE: Beginning in the early decades of the twentieth century, a majority of the Supreme Court, through a process called “incorporation,” began using the due process of law clause of Section 1 to make most of the individual rights of the Bill of Rights apply to and limit the states. In other words, the Court has used the due process clause to largely overturn the Supreme Court’s decision in the 1833 case Barron v Baltimore where the Court ruled that the Bill of Rights only applied to and limited the national government, not the states. This is sometimes called “the due process revolution” or “the second Bill of Rights.” For example, all of the specific rights of the Bill of Rights except for (1) the Third Amendment, (2) the grand jury clause of the Fifth Amendment, and (3) the Seventh Amendment today apply to and limit the states just as they have applied to and limited the national government since they were written.
Fourteenth Amendment: Section 1 -- Limitations on the States – Equal Protection of the Laws Clause (1868)
NOTE: In the late nineteenth century, the Supreme Court interpreted the “equal protection of the laws clause” very narrowly. For example, the Court declared Congress’ Civil Rights Act of 1875 outlawing racial discrimination in public accommodations such as hotels and restaurants unconstitutional. The Court reasoned that Congress could only prohibit discrimination by “state action,” not private discrimination as was being done by private individuals who owned hotels and restaurants.
NOTE: In the same time period, the Supreme Court in the 1896 case Plessy v Ferguson ruled that a state law requiring racial segregation on railway cars did not violate the equal protection of the laws clause as long as “the separate facilities were equal.” It was not until much later that the Court took a broader view of the equal protection of the laws clause and overruled some of the Court’s own earlier decisions such as Plessy. In addition, in the later decades of the twentieth century, the Court also began to interpret the equal protection of the laws clause to prohibit gender discrimination as well as discrimination in other areas such as voting or the drawing of legislative districts.
NOTE: Section 2 for the first time introduced the word “male” into the Constitution and served to anger leaders of the women’s rights movement.
The meaning of Section 3 was also very clear. Anyone who had held office in the government of the U. S. or any state and had taken an oath to support the U. S. Constitution but then committed treason by supporting the Confederacy was forbidden to hold any U. S. or state office.
The meaning of Section 4 was also equally clear. Debts incurred by the Union during the Civil War would be honored, but any debt incurred by the rebellious southern states was not the responsibility of the U. S. or any state.
Section 5 of the amendment provides that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” NOTE: Congress has used this so-called “enforcement clause” of Section 5, for example, in adopting part of the Voting Rights Act of 1965 in which Congress forbade the states to deny the right to vote to any citizen who had completed the sixth grade in the U. S. regardless of his or her language. The Supreme Court upheld Congress’ action using the enforcement clause.
Section 2 provides that “the Congress shall have power to enforce this article by appropriate legislation.”
NOTE: In 1869, when Congress began to consider what became the Fifteenth Amendment, a few members advocated that the amendment should extend the vote to women as well as African Americans. Another version would not only have protected the right to vote but also the right to hold office. In an effort to secure the amendment’s passage, its supporters adopted the least aggressive version. Instead of granting a positive or absolute right to vote, the proposed amendment which Congress adopted was framed in terms of a prohibition on the use of race, color, or previous condition of servitude to deny the right to vote. Noticeably, the amendment does not mention gender which meant that male, former slaves could not be denied the right to vote, but women of all races could still be denied that right. Congress later used the enforcement clause of Section 2 to pass the Civil Rights Acts of 1957 and 1960 as well as the Voting Rights Act of 1965.
NOTE: Article I, Section 8 of the original Constitution gave Congress the power to “lay and collect taxes,” but Article I, Section 9 forbade Congress from “laying capitation, or other direct tax” unless such tax was apportioned among the states in “proportion to the Census.” If an income tax was a “direct tax,” it would thus be unconstitutional because it could not be apportioned among the states in proportion to their population. For that reason, before the Civil War, most revenue for the government of the U. S. was raised through tariffs (taxes on imported products.) In 1861, Congress passed the Revenue Act of 1861, the nation’s first tax on personal incomes, to help pay for Civil War expenses, but that law was repealed in 1872. In 1894, Congress passed another income tax law, the Revenue Act of 1894, which placed a flat two per cent tax on incomes above $4,000. In the 1895 case Pollock v Farmers Loan and Trust Company, the Supreme Court declared that this was a direct tax that was not apportioned among the states in proportion to the Census and was therefore unconstitutional as a violation of Article I, Section 9. In 1907, Republican President Theodore Roosevelt gave his support to an income tax, and in 1908, the Democratic Party’s platform endorsed the idea. In 1909, the Sixteenth Amendment giving Congress the power to levy and collect an income tax and altering Article I, Section 9 was proposed by Congress, and in 1913 was added to the Constitution after being ratified by three-fourths of the states.
NOTE: For only the third time in U. S. history, Congress thus used the formal amendment process to overturn a decision of the Supreme Court.
NOTE: Just a few months after adoption of the Sixteenth Amendment, Congress passed an income tax with a top rate of 7 percent for those in the highest income bracket. Replacing the tariff, the personal and corporate income tax quickly became the major source of revenue for the national government.
NOTE: As the Constitution was originally written in 1787, the House of Representatives was the only one of the four parts of the new national government to be chosen by direct, popular vote. The Populist Party in 1892 became the first political party in the U. S. to support popular election of U. S. senators. In the so-called “Progressive Era” of American history, the reform idea caught on, and the Democrats and Republicans, the two major parties, came around to supporting the idea. The Seventeenth Amendment providing for direct, popular election of senators thus became reality in 1913.
Section 2 provided: “The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation.”
NOTE: Efforts to limit or ban alcohol consumption began in the United States long before the prohibition movement of the early years of the twentieth century. In the 1870s, women formed the Women’s Christian Temperance Union and tended to dominate the temperance (abstinence from alcohol) movement until the formation of the Anti-Saloon League in 1893 which soon became the leading national organization promoting prohibition. Many women involved in the women’s rights movement were also active in the temperance movement. The prohibition movement had much support in the South where between 1907 and 1915, eight states adopted prohibition laws. By 1917, fourteen more states in the West had adopted such laws. When the two houses of Congress adopted the proposed Eighteenth Amendment in 1917, most of the opponents were from urban areas of the North.
NOTE: The Eighteenth Amendment is the only successful effort to convert a social policy into a constitutional mandate. It is also the only amendment that sought to restrict the rights of the people. The Eighteenth Amendment is also the only amendment which has been repealed by a later amendment, namely the Twenty-First Amendment. Prohibition, as provided by the Eighteenth Amendment, has sometimes been called “the noble experiment.”
NOTE: At the end of the Civil War and with the adoption of the Thirteenth Amendment, women’s rights advocates who had worked for slavery’s abolition believed that it opened the door for also securing rights for women. Instead, their male allies focused on securing civil and political rights for male, former slaves. When the framers of the Fourteenth Amendment incorporated the word “males” in that amendment and then omitted the word “sex” from the Fifteenth Amendment, women’s rights advocates were understandably upset. In 1869, Elizabeth Cady Stanton and Susan B. Anthony formed the National Women’s Suffrage Association. Leaders of the women’s rights movement adopted a new strategy by deciding to push for women’s suffrage at the state level. Between 1890 when Wyoming was admitted to the union and was the first state to grant women suffrage and 1919 when Congress proposed the Nineteenth Amendment and sent it to the states for ratification, thirty states had granted women some form of suffrage. Thirteen of those states only permitted women to vote in presidential elections, but seventeen states permitted women to vote in all elections. Eighteen states, including all of the southern states, did not allow women to vote at all.
NOTE: World War I helped accelerate the movement for women’s suffrage after women played key roles in the war effort. After having previously opposed the amendment, President Woodrow Wilson changed his position and supported it as a war measure which made it more acceptable to some members of Congress.
NOTE: The Nineteenth Amendment is often called “the Susan B. Anthony Amendment” after one of its earliest and most enthusiastic supporters.
Twentieth Amendment: Dates for End of Terms of President, Vice President, Congress, Presidential Succession (1933)
Section 3 deals with situations where a President-elect dies before inauguration or where the nation does not choose a President before the newly set inauguration date. It specifies that the newly elected Vice President will serve in those situations. Section 4 authorizes Congress to adopt laws to handle situations where one of the presidential or vice presidential nominees dies before Congress can break a deadlock in the electoral college.
NOTE: The Constitution as adopted at the 1787 Constitutional Convention did not set a date for the election of the President, Vice President, U. S. Senators, or U. S. Representatives nor a date for the beginning of their terms. Early in the nation’s history under this Constitution, Congress by law set these dates: the first Tuesday after the first Monday in November as the date for all national elections and the first Wednesday in March as the date when the terms of the President, Vice President, and members of both chambers of Congress would begin. As a result, although elected in November, newly elected officials did not take office until the following March, and those defeated in November correspondingly did not leave office until March. Also, Article I, Section 4 of the original Constitution provided that Congress would assemble at least once each year beginning on the first Monday in December. NOTE: Often called the “lame duck amendment,” the Twentieth Amendment shortens the time that so-called “lame duck” Presidents, Vice Presidents, and legislators (that is, those defeated in November) remain in office. While there is still a “lame duck” period between November and January, it is shorter than the previous November to March “lame duck” period.
Section 2 provides: “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.”
NOTE: The Twenty-First Amendment is the only amendment ever added that repeals another amendment, the Eighteenth. It is also the only amendment ever ratified by special state conventions in the states as directed by Congress when it proposed the amendment. Congress feared that rural dominated state legislatures would reject the proposed amendment. It also demonstrates how quickly public opinion can change. Although the Eighteenth Amendment had resulted in a reduction in alcohol consumption, it also stirred great resistance. Government prosecution of bootleggers manufacturing and selling liquor illegally clogged the courts, and organized crime flourished. In addition, the alcohol industry was a potential source of employment and tax revenue at a time when the nation was confronting the Great Depression. Section 2 of the amendment allowed states to continue to regulate alcohol if they chose to do so, and many states in turn allowed local governments to decide policy in this matter.
NOTE: The framers of the Constitution as adopted at the 1787 Constitutional Convention debated the question of limiting the number of four -year terms a President could serve, but decided not to impose such a limit. For most of our history, the precedent set by George Washington, the nation’s first President, not to seek a third term even though he could have done so stood. Washington’s precedent lasted until 1940 when Democrat Franklin D. Roosevelt sought and won a third term as President and then in 1944 sought and won a fourth term. Republicans, with the support of some southern Democrats unhappy with Franklin Roosevelt, began a successful movement to propose an amendment limiting how long a President may serve. The amendment did not apply to President Harry Truman, the President when the amendment was adopted. The first President limited by the 22nd Amendment was Dwight Eisenhower, the first Republican President since 1933.
NOTE: Before 1961 when the Twenty-Third amendment was added to the Constitution, residents of the nation’s capital had no vote for President and Vice President of the U. S. even though they must pay taxes and follow the laws of the U. S. As adopted at the 1787 Constitutional Convention, electoral votes in the Electoral College created to choose the President and Vice President were apportioned to the states. The number assigned each state was determined by adding the number of a state’s U. S. Senators (two per state) and the number of a state’s U. S. Representatives (at least one for each state and above one determined by a state’s population). The District of Columbia is not a state and hence has no senators and no representatives. (Today it does have a non-voting delegate in the House but still no senators.) The Twenty-Third Amendment assigns the District three electoral votes which is the number the smallest state has. Today the District has a total population greater than that of several states. In 1978, Congress proposed the D. C Voting Rights Amendment which would have treated the District as if it were a state and given it voting representation in both the House and the Senate, but the proposed amendment was not ratified by the required number of states and therefore failed.
NOTE: In the era after the Civil War, southern states used the poll tax to keep African Americans from voting, and by the 1890s, some states were using it to discourage poor whites from voting. By 1908, all of the southern states had adopted the poll tax as a requirement for voting. In some states, it was cumulative which meant that if a citizen wished to vote, that citizen not only had to pay the poll tax for voting in the coming year but also had to pay the poll tax for previous years. By 1953, six of the eleven southern states had abolished the poll tax. As the civil rights movement developed and flourished in the 1950s and 1960s, a movement to ban the poll tax as a requirement for voting gained support. In 1962, Congress proposed the Twenty-Fourth Amendment banning the poll tax as a requirement for voting in national elections, and it was ratified in 1964 by the required number of states but without approval by any of the southern states.
NOTE: The amendment only forbade the use of the poll tax as a requirement for voting in national elections. Consequently, some southern states still tried to use it as a requirement for voting in state elections. In 1966, the Supreme Court ruled that a poll tax requirement for voting in state elections violated the equal protection of the laws clause of the Fourteenth Amendment.
Section 2 provides that if there is a vacancy in the office of Vice President, the President appoints a new Vice President with approval by a majority vote of both houses of Congress.
Section 3 addresses those situations where the President knows ahead of time that he is going to be disabled. When the President communicates in writing to the President Pro Tem of the Senate and the Speaker of the House that he is going to be disabled, the Vice President becomes Acting President until the President communicates in writing to the same two officials that he has recovered. Section 4 addresses those situations where the President is unable to communicate his disability or there is disagreement about his disability. The Vice President becomes Acting President if the Vice President and a majority of the Cabinet … communicate in writing to the President Pro Tem of the Senate and the Speaker of the House their decision that the President is unable to perform his duties.
When the President communicates in writing to the same two officials that he has recovered, the President resumes his office unless the Vice President and a majority of the Cabinet … communicate in writing to the same two officials in four days their judgment that the President is still disabled.
When this disagreement occurs, if Congress is not in session, it must assemble in 48 hours to decide the dispute.
Congress has 21 days to resolve the dispute. A two-thirds vote of both houses is required for the Vice President to win the dispute and remain Acting President. Anything less, and the President resumes his office.
NOTE: Not very many years after the amendment was added to the Constitution, part of the amendment was used not once but twice. In 1973, Vice President Spiro Agnew was forced to resign as Vice President, and President Richard Nixon appointed long-time U. S. Representative Gerald Ford with easy approval by both houses of Congress to be the new Vice President. In 1974, when President Nixon became the first President in history to be forced to resign the presidency rather than be impeached, Vice President Ford became President Ford and then appointed Nelson Rockefeller to succeed himself as Vice President.
NOTE: Since the founding of the United States, in a carryover from colonial and English precedents, states had been consistent in setting the voting age at 21. The U. S. Constitution adopted at the 1787 Constitutional Convention made little mention of the right to vote and did not grant the right to anyone. During or after every major war in the nation’s history, there had been an effort to lower the voting age based on the argument that anyone old enough to fight and perhaps die for the country was old enough to participate in voting for those who made the decision to go to war. For a long time, the movement made little or no progress in the face of the prevailing notion that 21 was the age of maturity. During and after World War II, several states considered lowering their voting age, but Georgia was the only state which did so. In the 1950s and 1960s, several groups pushed the states to lower their voting age, but only Kentucky, Alaska, and Hawaii did so. The Vietnam War apparently changed the situation. Congress in the Voting Rights Act of 1965 lowered the voting age in all elections to 18. When that provision in the Voting Rights Act was challenged, the Supreme Court in 1970 ruled that Congress could do this for voting in national elections but not state elections. The result was that in national elections the voting age in all states was 18, but in most states, the voting age in state elections was still 21. Congress moved quickly and proposed the 26th Amendment.
NOTE: A constitutional amendment has never been proposed and ratified as quickly as the 26th Amendment. This is also the fourth, and thus far last, amendment added to overturn a Supreme Court decision.
NOTE: The amendment means that if Congress votes itself a pay raise, and it can, it must wait two years before members can begin collecting that raise, meanwhile all members of the House and one-third of the Senate will have to face the voters
NOTE: In 1789, Representative James Madison, as he had promised in the debate over ratification of the new Constitution, introduced in the House of Representatives several proposed amendments to the Constitution. The House and the Senate adopted twelve of Madison’s proposed amendments and sent them to the states for ratification. Article V of the Constitution sets no time limit within which the states must act. Congress can do so, but did not do so when it proposed these twelve amendments. In 1791, three-fourths of the states at that time ratified ten of Madison’s proposed amendments. Two of Madison’s proposed amendment were not ratified by three-fourths of the states and thus failed of ratification. For most Americans, these two were long forgotten. One of these two concerned the size of the House of Representatives, is still forgotten, and in the judgment of most scholars will never be adopted. The other long forgotten proposed amendment concerned the salary of members of the two chambers of Congress which Congress by law sets for itself. Through the years states had continued to ratify the proposed amendment. In the late 1970s and 1980s Congress had given itself several pay raises which stirred opposition, and a movement to ratify Madison’s long forgotten amendment began. In May, 1992, the state legislature of the state of Michigan became the last state needed to achieve the three-fourths majority needed.