C O U R S E L E C T U R E
The Progressive Amendments: 16, 17, 18, and 19
Notes taken on January 15, 2015 by Edward Tanguay
the Progressive Era Amendments
they are connected with a kind of optimism about government and society
government can be improved following scientific methods
good government can be a force for good
these amendments have interesting aspects of the amendment making process to teach us
constitutional design in general
our Constitution in particular
"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."
gives the Federal government the power to tax income
there had been federal income taxes before, but they were frequently temporary ones
rates were quite low: 2-3%
Supreme Court decision in 1895 made it impossible to administer an income tax
therefore this explicit amendment was adopted
what can we learn from the 16th Amendment?
1. you have to pay your taxes
2. that power continues to move away from the states and to the federal government
this also happened when we moved from the Articles of Confederation to the Constitution
it happens again more dramatically with the Reconstruction
and it happens on a smaller scale more or less continuously
3. that the federal government is going to have more money, and with that money comes power
the federal government does not have the right to tell states 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
this is no problem as long as the federal government continues to only make laws which should not be left to the states
what would make the federal government hold back from making laws which states should be deciding on?
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 17th Amendment
"The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof."
the reason this Amendment was passed was to prevent corruption:
it's harder to bribe all the voters of a state than to bribe the State legislature
18th Amendment: Prohibition
tells us something about non-structural Constitutional provisions
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 then we needed another Amendment, the 21st, which came fourteen years later, to repeal prohibition
"The eighteenth article of amendment of the Constitution of the United States is hereby repealed."
so the whole episode was a little embarrassing
it shows us the kind of Amendments we shouldn't have
Prohibition was a bad Amendment for two reasons:
1. we didn't need a federal solution at all, his was an issue clearly within the realm of what States should be able to decide on
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 slavery, for instance, or no denying the right to vote on racial grounds
no alcoholic drinks doesn't quite rise to that level
"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."
this amendment teaches us something about how to make constitutional arguments
suppose that the 19th amendment has just be ratified and you are a judge
there is a law that discriminates against women
e.g. that they can't be bartenders
how does the 19th Amendment affect your analysis here
the interesting thing is that you can use the amendment to argue for either side
1. the 19th Amendment reflects a view that women are equal, their views count, too, and their political opinion is as good as men's political opinion
and if they are equal, states shouldn't be able to discriminate against them by excluding them from bartending
therefore the 19th Amendment means that law is unconstitutional
2. the 19th Amendment guarantees women the vote
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 process
and 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 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