Notes on the Amendments
Each Amendment to the Constitution came about
for a reason — to overrule a Supreme Court decision, to force a societal
change, or to revise the details of the Constitution. This page will give an
overview of how each Amendment came to be.
The process for adopting an amendment is outlined
elsewhere, as is the ratification history of
each Amendment. A list of failed amendments is
also available.
Quick links: Bill of Rights (1-10),
11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 21st, 22nd, 23rd, 24th, 25th, 26th, 27th.
The Bill of Rights (Amendments 1 through 10)
As noted on the Constitutional Convention Topic
Page, several delegates to the convention refused to sign the newly drafted
constitution because it did not include a bill of rights. Bills of rights were
typically parts of the constitutions of the several states of the day (and
today), placed there to ensure that certain rights were recognized by the
government. Most of the delegates did not feel such a bill was necessary, and
other may have been on the fence but were weary from the months of
negotiations.
The lack of a bill of rights was one of the main arguments that Anti-Federalists used to try to convince the
public to reject the Constitution. But the need for change was all too
evident, and it was not rejected. However, some of the states sent suggestions
for amendments to the Constitution to add an enumeration of certain rights.
The ratification messages of the states included many varying suggestions,
which the very first Congress took under consideration in its very first
session.
Representative James Madison, who was so instrumental in the creation of the
Constitution in the first place, drafted a bill of rights. Though he originally
opposed the idea, by the time he ran for a seat in the House, he used the
creation of a bill as part of his campaign. He introduced the bill into the House, which debated it
at length and approved 17 articles of amendment. The Senate took up the bill
and reduced the number to 12, by combining some and rejecting others. The House
accepted the Senate’s changes, voting on September 24th and 25th, 1789; twelve
articles of amendment were sent to the states for ratification.
The first two articles were not accepted by enough states, but the last ten
were. We know them today as Amendments 1 through 10. The second article was
eventually ratified as the 27th Amendment. The first ten amendments,
collectively known as the Bill of Rights, were
ratified on December 15, 1791 (811 days). A photographic image of the
badly-faded original Bill is available on this
site.
The 11th Amendment came about as a direct result
of the Supreme Court decision in Chisholm v Georgia (2 U.S. 419) in 1793
(see the Events Page for details). Congress felt that
the Supreme Court had over stepped its bounds, and feared it would do so again
unless prohibited by the Constitution. The Chisholm case was decided in
1793, just five years after the adoption of the Constitution. The Amendment was
approved by Congress on March 4, 1794, and ratified on February 7, 1795 (340
days). The Amendment limits the jurisdiction of the federal courts to
automatically hear cases brought against a state by the citizens of another
state. Later interpretations have expanded this to include citizens of the
state being sued, as well.
In Hollingsworth v Virginia (3 USC 378 [1798]), the passage and
ratification of the 11th was challenged for two reasons. First because the
President did not sign the amendment bill, and second because the amendment
presented a situation where people had some legal relief before ratification
that dried up after, creating an ex post facto situation. The Supreme Court
rejected both challenges, setting some important precedent for future
amendments.
The Constitution was written before parties were a player in American politics.
When John Adams was chosen for President in the 1796 election, the second-place
candidate, Thomas Jefferson, became Vice President — but Adams was a Federalist
and Jefferson was a Democratic-Republican. The two clashed several times during
Adams’s presidency, though Adams’s conflicts with Hamilton, a Federalist, too,
probably caused Adams more concern.
In the election of 1800, the flaws of the original system became more than
apparent. Jefferson and Aaron Burr both got 73 votes in the Electoral College, forcing the House of
Representatives to choose. The problem? Both Jefferson and Burr were
candidates of the same party, with Burr chosen to be the Vice President; some
states preferred Burr, and neither was able to get the required majority until
the stalemate was ultimately broken.
The result was the 12th Amendment, approved in
Congress on December 9, 1803, and ratified on June 15, 1804 (189 days), in time
for the new process to be in place for the 1804 election. With the 12th,
Electors are directed to vote for a President and for a Vice President rather
than for two choices for President.
Slavery was an institution in America in the 18th and 19th centuries. The
Southern states, with their agricultural economies, relied on the slavery system
to ensure the cash crops (cotton, hemp, rice, indigo, and tobacco, primarily)
were tended and cultivated. Slaves were not unknown in the North, but abolition
in the North was completed by the 1830’s. In 1808, the Congress prohibited the
slave trade, not a year later than allowed in the Constitution. A series of
compromises, laws, acts, and bills tried to keep the balance between the slave
states and the non-slave states. For a more thorough history of slavery, see
the Slavery Topic Page.
South Carolina voted to secede from the United States as a result of Abraham
Lincoln’s election to the Presidency. Lincoln had, over time, voiced strong
objections to slavery, and his incoming administration was viewed as a threat
to the right of the states to keep their institutions, particularly that of
slavery, the business of the states. More states seceded, eleven in all,
forming the Confederate States of America. The secession movement led to the
Civil War. In the waning days of the war, which ran from 1861 to 1865, the
Congress approved an amendment to abolish slavery in all of the United States.
Once the CSA was defeated, approval of the 13th
Amendment was quick in the Northern states. By the end of 1865, eight of
the eleven Confederate states had also ratified it. Proposed on January 31,
1865, it was ratified on December 6, 1865 (309 days). Eventually, all of the
CSA states except Mississippi ratified the 13th after the war; Mississippi
ratified the amendment in 1995.
The ratification of the 13th Amendment was a major victory for the North, and it
was hoped that with the Emancipation Proclamation and
the 13th Amendment, the effects of slavery in the United States would quickly
diminish. The original plan to readmit states after acceptance of the 13th was
supported by President Andrew Johnson, but the Radical Republicans, as they
became known, wanted more than just a return to normalcy. They wanted to keep
the power they had attained during the war years. The South did not make it
easy for Johnson, however, and the so-called Black Codes started to be passed in
Southern states. Congressional inquiries into the Black Codes found them to be
a new way of controlling ex-slaves, fraught with violence and cruelty.
The ensuing Reconstruction Acts placed the former CSA states under military
rule, and prohibited their congressmen’s readmittance to Congress until after
several steps had been taken, including the approval of the 14th Amendment. The 14th was designed to ensure
that all former slaves were granted automatic United States citizenship, and
that they would have all the rights and privileges as any other citizen. The
amendment passed Congress on June 13, 1866, and was ratified on July 9, 1868
(757 days).
The last of the Reconstruction Amendments, the 15th
Amendment was designed to close the last loophole in the establishment of
civil rights for newly-freed black slaves. It ensured that a person’s race,
color, or prior history as a slave could not be used to bar that person from
voting. Though a noble idea, it had little practical effect for quite some
time, as the Southern states found myriad ways to intimidate blacks to keep
them from voting. The Congress passed the amendment on February 26, 1869, and
it was ratified on February 3, 1870 (342 days).
Though ratification of the 15th Amendment was not a requirement for
readmittance of the Confederate states to the Congress, one of the provisions
of the Reconstruction Acts required that the states include a provision in
their new constitutions that included a near-copy of the text of the 15th. All
of the CSA states except Tennessee, which was immune from the Reconstruction
Acts, eventually ratified the 15th Amendment.
In 1895, in the Supreme Court case of Pollock v Farmer’s Loan and Trust
(157 U.S. 429), the Court disallowed a federal tax on income from real
property. The tax was designed to be an indirect tax, which would mean that
states need not contribute portions of a whole relative to its census figures.
The Court, however, ruled that the tax was a direct tax and subject to
apportionment. This was the last in a series of conflicting court decisions
dating back to the Civil War. Between 1895 and 1909, when the amendment was
passed by Congress, the Court began to back down on its position, as it became
clear not only to accountants but to everyone that the solvency of the nation
was in jeopardy. In a series of cases, the definition of “direct tax” was
modified, bent, twisted, and coaxed to allow more taxation efforts that
approached an income tax.
Finally, with the ratification of the 16th
Amendment, any doubt was removed. The text of the Amendment makes it clear
that though the categories of direct and indirect taxation still exist, any
determination that income tax is a direct tax will be irrelevant, because taxes
on incomes, from salary or from real estate, are explicitly to be treated as
indirect. The Congress passed the Amendment on July 12, 1909, and it was
ratified on February 3, 1913 (1,302 days).
One of the most common critiques of the Framers is
that the government that they created was, in many ways, undemocratic. There is
little doubt of this, and it is so by design. The Electoral College, by which we choose our
President, is one example. The appointment of judges is another. And the
selection of Senators not by the people but by the state legislatures, is yet
another. The Senatorial selection system eventually became fraught with
problems, with consecutive state legislatures sending different Senators to
Congress, forcing the Senate to work out who was the qualified candidate, or
with the selection system being corrupted by bribery and corruption. In several
states, the selection of Senators was left up to the people in referenda, where
the legislature approved the people’s choice and sent him or her to the Senate.
Articles written by early 20th-century muckrakers also provided grist for the
popular-election mill.
The 17th Amendment did away with all the
ambiguity with a simple premise — the Senators would be chosen by the people,
just as Representatives are. Of course, since the candidates now had to cater
to hundreds of thousands, or millions, of people instead of just a few hundred,
other issues, such as campaign finances, were introduced. The 17th is not a
panacea, but it brings government closer to the people. The Amendment was
passed by Congress on May 13, 1912, and was ratified on April 8, 1913 (330
days).
Consumption of alcohol was discouraged by law in many of the states over the
first century of the United States under the Constitution. By 1855, 13 of the
31 states had temperance, or alcohol prohibition, laws. The Civil War
distracted the public from the temperance movement, but the proliferation of
saloons after the Civil War, and the trappings of the saloons (like gambling,
prostitution, and public drunkenness) led to the so-called “Women’s War” in
1873. Over time, the movement became more organized and the Anti-Saloon League
was established in 1893. The ASL’s goal was national prohibition, and it set
up an office in Washington to that end — it even established its own publishing
house in Westerville, Ohio.
The ASL polled candidates on their stand on the temperance question,
endorsing candidates with a pro-temperance stance. In the election of 1915,
ASL-sponsored candidates swept the elections for Congress, and on December 18,
1917, Congress passed the 18th Amendment. It
quickly was adopted by the states, being ratified in just over a year, on
January 16, 1919 (394 days).
Though the Constitution originally made no mention of a woman’s right to vote,
it was implied by society — women simply did not have the right. The 14th
Amendment actually made things worse, by codifying the suffrage right to men
only, when its Second Clause punished the denial of suffrage to men (though this
still did not officially deny women the right). As early as 1848, groups met to
discuss how to further women’s rights, and the franchise, it was decided, was
the best place to start. But America was not ready, and the suffragists, as
they were called, were branded as immoral.
Famous women’s rights leaders Susan B. Anthony and Elizabeth Cady Stanton
tried to make a stand after the Civil War, to have the language of the 14th
Amendment include women, though the issue was thought too volatile by most, and
passage of the amendment was thought to be in grave jeopardy if such a
provision were included. Anthony later used the 15th Amendment as rationale
for voting in a New York election, and though she was tried and fined for
voting, the ordeal proved an impetus for the eventual guarantee of voting
rights for women. By 1918, about half the states had granted women full or
partial voting rights; the stature gained by women involved in the temperance
movement also helped push the suffragist movement along. The support of women
to the war effort convinced many more, even President Woodrow Wilson, who had
been staunchly opposed to a federal suffrage amendment. On June 4, 1919, the
19th Amendment was passed by Congress, and it was
ratified on August 18, 1920 (441 days).
The term “Lame Duck” originates in the mid 1700’s. It is applied to an elected
official who has not been reelected, but still holds office. For example, in
the United States today, the President is elected in November, and inaugurated
in January of the following year — the time in between if the President was not
reelected, is the lame duck period. Early in the political history of the
nation, the period between the election and swearing-in of elected officials was
a small issue. With slow methods of transportation and the nature of the
politician in the 18th century, the lame duck period was almost a necessity. In
fact, once the November election was established, it was more than a year before
newly elected congressmen met in December.
But from the start, the lame duck period was a problem, most famously
illustrated in the Marbury v Madison case, where lame-duck appointments
by out-going President John Adams set the stage for a landmark Supreme Court
decision with his series of late-night, last-minute appointments. The 20th Amendment cleared up this problem to a degree,
by shortening the lame duck period. The Congress is sworn in on January 3
following the election, and the President is sworn in on January 20, rather
than the March 4th prescribed in the 12th Amendment. The Amendment also closes
a gap in Presidential power by specifying what will happen if a President-elect
dies before he is sworn in. The 20th Amendment was passed by Congress on March
2, 1932, and was ratified by the states on January 23, 1933 (327 days).
The 20th reached some notoriety during the impeachment proceedings of
President Bill Clinton in 1998; the final House vote was taken after the 1998
elections, and the Senate was not scheduled to hear the case until after the
swearing-in of the next Congress in 1999. Arguments that the 20th conceptually
required a revote by the new House were fruitless, however.
It would be a disservice to say that the 18th Amendment was completely
ineffective. It would also be a disservice to say that the 18th Amendment
caused the lawlessness embodied by people like Al Capone. The 18th Amendment
did reduce alcohol consumption in the United States, and it did not cause
organized crime. In the Prohibition era, alcohol consumption (measured in
gallons of ethanol consumed) dropped to an average of less than a gallon per
person per year, down from two and a half gallons in 1915. And organized crime
existed before Prohibition, and existed after it, too.
That having been said, the Prohibition era did have a certain sense of
lawlessness; the very fact that consumption was not eliminated is testimony to
that; and the fact that organized crime manufactured and distributed the bulk of
the illicit alcohol of the 1920’s and early 1930’s is evidence that gangsters
were aided by Prohibition. Enforcement was spotty, with stills and speakeasies
popping up in every population center. Over-zealous police and federal agents
violated civil rights when searching for and destroying the paraphernalia of
alcohol. While most Americans respected the law, were in favor of the law, the
shine of “dry” began to wear off, especially as the Great Depression set in.
A movement began to form to repeal the 18th Amendment. Prohibition of
alcohol was seen as an affront to personal liberty, pushed on the nation by
religious moralists. Alcohol was also seen as a source of revenue for the local
and national governments. The effort to elect “wet” legislators was as grand as
that to elect “dry” ones almost two decades earlier. The Congress passed the
amendment on February 20, 1933 (288 days). It mandated, for the first time,
that conventions of the states were to vote on the amendment, rather than the
legislatures, feeling that conventions would be more apt to vote to ratify –
and they did, quickly — the ratification process was complete on December 5,
1933. The 21st Amendment repealed the 18th, the
first time an amendment had been repealed by another.
Since the presidency of George Washington, only one thing could be said to be
totally consistent — that no President had the job for more than two full terms.
Washington had been asked to run for a third term in 1796, but he made it quite
clear that he had no intention of doing so; that an orderly transition of power
was needed to set the Constitution in stone. And so it was for almost 150
years.
Franklin Delano Roosevelt was first elected President in 1932, and
re-elected in 1936. When it came time for the Democrats to nominate a
candidate for the Presidency in 1940, two things had happened. First, the
Republicans had made great gains in Congress in the 1938 elections. And Hitler
happened. Europe was in the throes of a great war, with trouble in the Pacific,
too. A change away from Roosevelt, who had led the nation through the Great
Depression, did not seem wise. He was nominated for an unprecedented third
term, and won. It was not a landslide victory, however, and it is debatable
that FDR would have had a third term had it not been for the war. When 1944
rolled around, changing leaders in the middle of World War II, which the United
States was now fully engaged in, also seemed unwise, and FDR ran for and was
elected to, a fourth term.
His life was nearly over, however, and his Vice President, Harry Truman,
became President upon FDR’s death less than 100 days after his inauguration.
Though FDR’s leadership was seen by many as a key reason that the U.S. came out
of WWII victorious, the Congress was determined, once the war ended, to ensure
that Washington’s self-imposed two-term limit become the law of the land.
Specifically excepting Truman from its provisions, the 22nd Amendment passed Congress on March 21, 1947.
After Truman won a second term in 1948, it was ratified on February 27, 1951
(1,439 days). Truman could have run for a third term, but bowed out early
before campaigning began.
The District of Columbia has been a unique city since its founding in 1800 as
the seat of the new government. When first established, it was a town of 5000,
and it was assumed that it would be the center of government, and not a
population center. But by 1900, over a quarter of a million people lived within
its bounds. Since it is a federal district, however, and not a state, the
inhabitants not only had no real local government, they had no vote in the
federal government either. By 1960, when 760,000 people lived in Washington,
D.C., it seemed odd that people from a dozen states, with lower populations, had
more voting rights than residents of the District. As citizens, they were
required to pay taxes and to serve in the military, but a vote in the
Presidential election was available only to the states.
It is important to note that the 23rd
Amendment does not make Washington, D.C., a state; it just confers upon its
citizens the number of electors that it would have if it were a state. It also
did not provide full representation in Congress for the District. The Congress
passed the amendment on June 17, 1960; the amendment was ratified on March 29,
1961 (285 days).
One of the last legal vestiges of segregation was the effort to keep the black
population from participating in the vote. With most methods for keeping the
black vote to a minimum declared unconstitutional, several Southern states found
an answer — the poll tax. The poll tax has a long history, and was often used
in Europe to raise funds. With a poll tax, in order to vote, a certain tax must
be paid. The tax is the same for all, which allowed the generally more affluent
white population access to the polls with a minimum of pain, while the generally
poorer black population would have trouble justifying trading food on the table
for a vote in the ballot box. Worse, different kinds of poll taxes were
implemented, some accumulating even if no attempt was made to vote, meaning
increasingly higher back-taxes to be paid to gain the vote.
In 1939, Congress began to try to get rid of the poll tax, but history was
not behind them. After all, in colonial times and when the Constitution first
came into effect, land ownership was often a requirement for suffrage. Though
only five states still had a poll tax by the time the amendment passed
Congress, Supreme Court rulings made it doubtful that mere legislation would
eliminate the tax altogether. Proposed by Congress on August 27, 1962, the 24th Amendment was ratified within a year and a
half, on January 23, 1964 (514 days).
When Dwight Eisenhower was president, he suffered from several medical issues
that created a power vacuum. Eisenhower and his Vice President Richard Nixon
entered into an agreement that allowed Nixon to become Acting President while
Eisenhower was incapacitated. The agreement was between the two men and did not
have constitutional authority, but it set a precedent that was followed by the
following presidents, John Kennedy and Lyndon Johnson.
Nothing prepared anyone, however, for the national tragedy of the Kennedy
assassination. The 1963 assassination shocked the nation in more ways than the
obvious. The advancement of medical technology had many hoping that the
President could have been saved after being shot. That was not the case, but if
he had been, Kennedy could have been in a coma for an extended period of time,
perhaps never able to fully function again. The Eisenhower-Nixon agreement set
some things in motion, but was extra-constitutional. The Vice President would
be the President, but would not be able to fulfill his duties. The resulting
power vacuum would cause a constitutional crisis — who has the power of
the Presidency?
Less than two years after Kennedy’s death, on July 6, 1965, the Congress
passed the 25th Amendment, where the line of
succession was not only clarified, but what was to be done in the case of
presidential disability was addressed. The selection of a Vice President for
an empty Vice Presidential seat was also provided for. The states ratified the
amendment on February 10, 1967 (584 days). The second clause, dealing with the
filling of a vacancy in the Vice Presidency, was used less than six years later
when Gerald Ford assumed the Vice Presidency upon the resignation of Spiro
Agnew.
The United States was in the throes of the Vietnam War and protests were
underway throughout the nation. Draftees into the armed services were any male
over the age of 18. There was a seeming dichotomy, however: these young men
were allowed, even forced, to fight and die for their country, but they were
unable to vote. The 14th Amendment only guaranteed the vote, in a roundabout
way, to those over twenty-one.
The Congress attempted to right this wrong in 1970 by passing an extension
to the 1965 Voting Rights Act (which itself is enforcement legislation based on
prior suffrage amendments) that gave the vote to all persons 18 or older, in
all elections, on all levels. Oregon objected to the 18-year-old limit, as
well as other provisions of the 1970 Act (it also objected to a prohibition on
literacy tests for the franchise). In Oregon v Mitchell (400 U.S. 112),
a sharply divided Supreme Court ruled that the Congress had the power to lower
the voting age to 18 for national elections, but not for state and local
elections. The case was decided on December 1, 1970. Within months, on March
23, 1971, the Congress passed the text of the 26th
Amendment, specifically setting a national voting age, in both state and
national elections, to 18. In just 100 days, on July 1, 1971, the amendment
was ratified.
Close Up, an organization dedicated
to involving youth in government, has produced a PDF pamphlet on the 26th
Amendment and history. You can find the pamphlet on their web site.
The 27th Amendment was originally proposed on
September 25, 1789, as an article in the original Bill of Rights. It did not
pass the required number of states with the articles we now know as the first
ten amendments. It sat, unratified and with no expiration date, in
constitutional limbo, for more than 80 years when Ohio ratified it to protest a
congressional pay hike; no other states followed Ohio’s lead, however. Again
it languished, for more than 100 years.
In 1978, Wyoming ratified the amendment, but there was again, no follow-up
by the remaining states. Then, in the early 1980’s, Gregory Watson, an aide to
a Texas legislator, took up the proposed amendment’s cause. From 1983 to 1992,
the requisite number of states ratified the amendment, and it was declared
ratified on May 7, 1992 (74,003 days).