CLASS NOTES: The Progressive Amendments: 16, 17, 18, and 19 (Key Constitutional Concepts and Supreme Court Cases)

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Notes on video lecture:

The Progressive Amendments: 16, 17, 18, and 19

Key Constitutional Concepts and Supreme Court Cases

Professor Kermit Roosevelt, III, University of Pennsylvania

Notes taken by Edward Tanguay on January 15, 2015 (go to class or lectures)

Choose from these words to fill the blanks below:

structural, embarrassing, half, alcoholic, judge, states, 1895, 1920s, states, out, liquors, excluding, opposite, bribe, corruption, optimism, process, 17th, good, each, good, low, temporary, slavery, analysis, Constitution, women, federal, incomes, people, bartenders, not, Reconstruction, 1920, repeal, unjustified, federal, political, sex, Progressive, scientific

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the Era Amendments

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1890s to

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they are connected with a kind of about government and society

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government can be improved following methods

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good government can be a force for

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these amendments have interesting aspects of the amendment making process to teach us

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constitutional design in general

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our in particular

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16th Amendment (1913)

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"The Congress shall have power to lay and collect taxes on , from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

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gives the Federal government the power to tax income

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there had been federal income taxes before, but they were frequently ones

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to pay for wars

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rates were quite : 2-3%

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Supreme Court decision in made it impossible to administer an income tax

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therefore this explicit amendment was adopted

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what can we learn from the 16th Amendment?

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1. you have to pay your taxes

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2. that power continues to move away from the and to the federal government

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this also happened when we moved from the Articles of Confederation to the Constitution

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it happens again more dramatically with the

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and it happens on a smaller scale more or less continuously

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3. that the government is going to have more money, and with that money comes power

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the federal government does not have the right to tell to pass certain laws, but if it has enough money, it can say to the states: if you want this money, pass this law, and the states usually will

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this is no problem as long as the federal government continues to only make laws which should not be left to the states

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what would make the federal government hold back from making laws which states should be deciding on?

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we know that representatives to the federal government care about getting re-elected, so we will put the power to elect them in the hands of people who care about state interests: the people of the state, hence the Amendment

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17th Amendment

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"The Senate of the United States shall be composed of two Senators from each State, elected by the thereof."

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the reason this Amendment was passed was to prevent :

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it's harder to all the voters of a state than to bribe the State legislature

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18th Amendment: Prohibition

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tells us something about non- Constitutional provisions

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it tells us what kinds of provisions we should put in the Constitution

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"...the manufacture, sale, or transportation of intoxicating within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited."

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this seemed like a idea at the time, but later Americans decided that they might want to have a drink

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and then we needed another Amendment, the 21st, which came fourteen years later, to prohibition

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

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so the whole episode was a little

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it shows us the kind of Amendments we shouldn't have

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Prohibition was a bad Amendment for two reasons:

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1. we didn't need a solution at all, his was an issue clearly within the realm of what States should be able to decide on

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2. this was a very specific policy choice, we do have some of these kinds of amendments in the Constitution that have worked out but they tend to be the kinds of things everyone agrees on, very fundamental principles, no , for instance, or no denying the right to vote on racial grounds

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no drinks doesn't quite rise to that level

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the 19th Amendment

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ratified in

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"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 the account of ."

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this amendment teaches us something about how to make constitutional arguments

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suppose that the 19th amendment has just be ratified and you are a

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there is a law that discriminates against

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e.g. that they can't be

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how does the 19th Amendment affect your here

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the interesting thing is that you can use the amendment to argue for either side

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1. the 19th Amendment reflects a view that women are equal, their views count, too, and their opinion is as good as men's political opinion

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and if they are equal, states shouldn't be able to discriminate against them by them from bartending

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therefore the 19th Amendment means that law is unconstitutional

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2. the 19th Amendment guarantees women the vote

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women are more than of the voting population

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if this is a bad law, if it's , if it's harmful to women, then women can use their political power to get rid of it

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therefore, this is an issue that judges should stay of

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one they should leave up to the political

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and the 19th Amendment means this law is constitutional

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how is it that you can take the same constitutional provision and make arguments in directions?

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the hard questions in constitutional law are hard because there are arguments on both sides

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that's why they give us these great cases, where, usually, you have some Supreme Court justices on side

Spelling Corrections:

admendment ⇒ amendment

Ideas and Concepts:

On the kinds of amendments not to put in the Constitution, via this morning's Key Constitutional Concepts course:

"The 18th Amendment passed in 1920 tells us something about non-structural Constitutional provisions and it tells us what kinds of provisions we should not put in the Constitution:

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

This seemed like a good idea at the time, but later Americans decided that they might want to have a drink, and so we needed another Amendment, the 21st, which came fourteen years later, to repeal the 18th amendment:

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

The whole episode was a little embarrassing and showed that the 18th Amendment to the Constitution was a bad idea for two reasons:

1. We didn't need a federal solution regarding the sale of alcoholic drinks at all, as this was clearly an issue within the jurisdiction of what States themselves.

2. This was a very specific policy choice and so does not belong in a constitution which describes a country's most fundamental laws. We do have some of these kinds of Amendments in the Constitution that have worked out, but they tend to be the kinds of things everyone has come to agree on, e.g. very fundamental principles such as no slavery, or no denying the right to vote on racial grounds. No alcoholic drinks doesn't quite rise to this level."

On how Constitutional amendments can be used to argue in opposite directions, via today's Key Constitutional Concepts course:

"The 19th Amendment, ratified in 1920, stated that "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 the account of sex" which not only gave women the right to vote, but teaches us something about how to make constitutional arguments.

Suppose that the 19th amendment has just been ratified and you are a judge, and you are ruling over a court case regarding a law that discriminates against women, e.g. that women can't be bartenders. How does the 19th Amendment affect your analysis of this case?

The interesting aspect of this amendment is that it could be used to argue either side of this case:

1. The 19th Amendment reflects a view that women are equal, i.e. that their views count as well, and their political opinion is as valid as men's political opinion. And if women's opinions are equal, then states shouldn't be able to discriminate against them by excluding them from bartending, therefore the 19th Amendment means that this law is unconstitutional.

2. The 19th Amendment guarantees women the right to vote and women are more than half of the voting population. If this is a bad law, if it's unjustified, if it's harmful to women, then women can use their political power to get rid of it. Therefore, this is an issue that judges should stay out of, one they should leave up to the political voting process, and so the 19th Amendment means this law is constitutional.

How is it that you can take the same constitutional provision and make arguments in opposite directions? The fact is that the hard questions in constitutional law are hard because there are arguments on both sides. That's why they give us these great cases, where, usually, you have some Supreme Court justices on each side."