Constitutional FAQ Answer #17
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Q17. “Beyond the Bill of Rights, few
Constitutional amendments have radically altered the American system of
government. Slavery was actually abolished by warfare, rather than legislation.
In all probability a new Supreme Court majority would have authorized the
graduated income tax. Senators were actually chosen by the people long before
the amendment was passed; women would today have the vote, Nineteenth Amendment
or no. Is this analysis valid? Can you find further evidence to make this
point? Can you think of evidence that contradicts this thesis?”
A. I think that this analysis has merit, but I don’t think it is completely
valid, either. Just to use the examples in the question:
The point about slavery is probably partially right, though even the
Constitution was a beginning of a change to the way the U.S. handled slavery
— after a certain date, no new slaves could be “imported” to the U.S. (Article 1, Section 9, Clause 1). All new
slaves had to be naturally born into slavery. It may not seem like
much of a step forward, but it was. And one catalyst for the Civil War
may have been slavery, but it was so much more than that. The 14th amendment,
with its due process of law clause, has been one of the most influential pieces
of legislation this nation has seen, aside from the original Constitution and
Bill of Rights itself. Without the abolition of slavery written into law, it
could easily have cropped up again in either the deep south or some of the new
south western states.
If the income tax had not been codified into
the Constitution, it is likely that a future Court might have allowed an income
tax (in fact, one was passed around the time of the Civil War, but never really
implemented). But, when the tenure on the bench changed and the national
appetite for taxes went sour, it would have been struck down again. I’m not
saying that I like the income tax (God knows!) but without an amendment, it
would have been passed and challenged and overturned and affirmed…. what a
mess.
Senators may have been chosen indirectly by the people in some states, but
the fact remained that the power to choose Senators was in the hands of the
state legislatures, and not the people. The 17th
amendment made sure that the power to choose senators was in the hands of
the people, and not some state legislature or executive branch. It brought a
small measure of democracy to the people that the original framers didn’t think
we could handle.
And lastly, I think that women’s suffrage was the genesis of equality among
the sexes, rather than women’s suffrage being an inevitable part of some
burgeoning equality among the sexes. Though the Constitution itself never says
that women cannot vote, the 14th amendment
extends the right to vote to all males, 21 or over. I don’t think that a state
would have been prevented from allowing women to vote, but I don’t think that
women bringing a state to court could have compelled that state to let them
vote, either. And with legislators in such a state elected by men, there would
have been a clear conflict in any efforts to grant suffrage. A national
mandate, a constitutional amendment, was the only
way to go about this.
Now, it is true that many of the later amendments have had little practical
effect on everyday life – the line of succession to the presidency or the
two-term limit, or even the right of D.C. citizens to vote has little effect on
Everyman. But there are two points – first, the Constitution is a mature
document. Right now, we are fine tuning it to fit new situations and our
evolving society. Second, the most sweeping changes lately have not been in the
Constitution itself, but in its interpretation. The cases of the past 50 years,
Brown v Board, Bakke, Miranda, FCC v Pacifica, Roe v Wade, etc., have been
turning points in our societal, judicial, and legislative history.
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Last Modified: 16 Aug 2010