My New Book!

My New Book!
My New Book!

Saturday, December 7, 2019

December 7-8, 2019: Future Constitutional Amendments?


[On December 6, 1865, the 13th Amendment to the Constitution was ratified. So this week I’ve AmericanStudied that crucial amendment and four others, leading up to this weekend post on three potential amendments to come!]
On three ways the Constitution should probably be further amended (and by “should,” I want to be clear that I’m only talking about potential changes I support here!).
1)      The ERA: I already wrote about the ERA as part of Wednesday’s post on the 19th Amendment, and of course that’s the thing with the ERA—it’s not at all new, having spent nearly five decades now languishing in limbo after passing both Houses of Congress in 1972. Yet far from making it less of a potential future amendment, I would argue that that history makes the ERA the next amendment that should be ratified and added to the Constitution. Frankly, it is entirely ridiculous that this straightforwardly equitable amendment (one that simply validates and reinforces the “All men are created equal” sentiment on which the nation was founded) has not been added long since, and that it’s apparently controversial enough to have stalled for so long. But there’s no time like the present, and what better way to inaugurate the centennial of suffrage than to finally pass the ERA?
2)      The Electoral College: I really do believe that the ERA should be as non-controversial as an amendment can get, but I fully recognize that my 2nd and 3rd subjects for today are and will always be far more divisive. While the Constitution did many things, at its core it created the American form of democratic process and governance—and one core element of the process part was the creation of the electoral college as a system for electing the executive. Yet the way in which that system operates was significantly shifted by the 12th Amendment, reminding us that every aspect of the Constitution is and must be living and changeable. Moreover, there’s just no way to conflate what populous/less populous or large/small states meant in 1787 with what they mean in 2019, when (for example) California has a population of nearly 40 million and Wyoming a population of just over 500,000. To my mind, electors (however they are distributed) cannot possibly represent the will of those populations and individuals sufficiently, and an amendment to create some form of popular voting is necessary if the US government is ever again to reflect the American people.
3)      Guns: The same historical vs. contemporary point certainly applies here: while there are various ways to read and interpret the 2nd Amendment’s tortured grammar, the bottom line is that what “arms” meant in 1789 has precious little (if anything) to do with the weapons of war that have been decimating our communities and nation over the last decade. But to be honest, even if there were some way to teleport to the 1780s and we learned that George Mason and company intended for every American to be able to carry around a personal bazooka or some such, I would argue that the more important point is this: the amendment process was created precisely so the Constitution can evolve to address a continually evolving society. The Framers understood well that America in any future moment would look different from theirs, and designed this vital part of the Constitution in order to allow it to grow and shift along with the nation. In the 21st century, both guns and America have evolved to a point where our gun culture has to change if we are to continue moving toward that more perfect union promised by the Constitution—and since the 2nd Amendment exists, any significant such change will require its own amendment as well.
Next series starts Monday,
Ben
PS. What do you think? Other Amendments you’d predict or argue for?

Friday, December 6, 2019

December 6, 2019: AmendmentStudying: On Not Taking the 13th Amendment for Granted


[On December 6, 1865, the 13th Amendment to the Constitution was ratified. So this week I’ll AmericanStudy that crucial amendment and four others, leading up to a weekend post on three potential amendments to come!]
Given how much all rational 21st century Americans agree that slavery was a dark stain on America’s identity, it might seem to have been inevitable that, with the Civil War concluded, slavery would be permanently abolished with a Constitutional Amendment. But here are three reasons why we should most definitely not see that amendment as a given:
1)      How it happened: Steven Spielberg’s historical drama Lincoln (2012) is not without its flaws, but the film does an excellent job portraying the tense, difficult, extremely uncertain process by which Lincoln and his Congressional allies secured passage of the 13th Amendment. I don’t want to suggest for even a moment that the Civil War was not centrally about the issue of slavery—it was, full stop—but that didn’t mean that most Northerners, nor most political leaders, shared the same idea of what should happen with that issue as the war concluded. That what happened was a Constitutional amendment was thus anything but inevitable, and the process by which the amendment passed reflects both that uncertainty and the heroic lengths to which Lincoln and many others went to make it happen.
2)      What happened next: The 13th Amendment was in many ways the most straightforward of the three so-called Reconstruction Amendments, and that fact, along with the many ways that the 14th and 15th Amendments have been extended, deepened, and (unfortunately) challenged in the 150 years since, might lead to it seeming the least significant of the three. But among the many ways (such as the rest of this post) that I would push back on that idea, I would note that neither the 14th nor the 15th Amendment would likely have been imaginable, much less possible, had the 13th not been passed. It’s not just that slavery might well have returned (on which see #3 in a moment), but that in any case there would have been no Constitutional or federal law defining African Americans as anything other than slaves. Without that first step, the rest of the path, fraught and incomplete as it has been, could not have existed.
3)      What might have happened otherwise: I don’t actually believe that slavery could have returned in the immediate aftermath of the Civil War—but I absolutely believe it might have a couple decades later. I wrote at length in my first book, and have written in many places since, about the process by which American culture and society became by the 1880s (as Albion TourgĂ©e succinctly put it) “distinctly Confederate in sympathy.” Indeed, as early as 1877 an editorial in the progressive magazine The Nation opined that with the end of Reconstruction, “the negro will disappear from the field of national politics. Henceforth the nation, as a nation, will have nothing more to do with him.” If (in the absence of a 13th Amendment) Southern states had wished to re-implement a slave system in the late 19th century, it’s very possible that neither law nor mainstream white society would have objected. And while segregation and its attendant histories have been called, with justice, “slavery by another name” (and while a seemingly small detail of the 13th Amendment itself frustratingly opened the door for some of the worst of those histories), the truth is that all that followed was, at least, not slavery—and we have the 13th Amendment to thank for it.
Special post this weekend,
Ben
PS. Thoughts on this Amendment? Others you’d highlight?

Thursday, December 5, 2019

December 5, 2019: AmendmentStudying: Washington, DC and the 23rd Amendment


[On December 6, 1865, the 13th Amendment to the Constitution was ratified. So this week I’ll AmericanStudy that crucial amendment and four others, leading up to a weekend post on three potential amendments to come!]
On how the 1961 amendment echoes the city’s complex history, and how it helped shift it.
From its earliest origins, the federal capital of Washington, DC has had a complex, contested identity, both within the American government and as a geographic entity. The capital was created out of both an informal political arrangement (the Compromise of 1790, in which Madison, Hamilton, and Jefferson agreed that the federal government would pay all remaining state Revolutionary War debt in exchange for establishing a national capital in the South) and a couple of subsequent Congressional laws (the Residence Act, also of 1790, which formalized a 10-year plan to construct the capital; and later the Organic Act of 1801, which officially designated the newly constructed city as part of the federal government and thus its citizens as part of neither Maryland nor Virginia). And the political and geographic evolution did not end there: in 1846, for example, the Virginia General Assembly (fearing that slavery would soon be abolished in the capital) voted to accept the area known as Alexandria (which had been incorporated into DC when the capital was officially organized) back into the state; Congress agreed, and with its July vote for this “retrocession” changed all those Alexandrians from citizens of DC (and thus without Congressional representation or electoral votes for president) to Virginians.
The 23rd Amendment to the Constitution, which passed Congress in June 1960 and was ratified in March 1961, culminated more than 70 years of Congressional efforts to address some of the political inequities captured in my first paragraph’s final parenthesis. As early as 1890, a proposal was introduced to Congress to grant DC voting rights in presidential elections; the bill did not pass, but thanks to the efforts of Washington Evening Star journalist and editor Theodore Noyes and his Citizens’ Joint Committee on National Representation for the District of Columbia, activism of behalf of this political change for the capital continued throughout the 20th century. Yet while the 23rd Amendment did indeed grant electoral votes to the District, it did not provide Congressional representation for the city, an issue that remains contested to this day (as illustrated by DC’s tongue-in-cheek license plate slogan). Moreover, as of 1961 Washington, DC still did not have “home rule,” meaning that residents of the city could not elect their own mayor or city council. Although this had been the case throughout the city’s complex history, the rapidly increasing percentage of African American residents during the mid-20th century made the issue part of the Civil Rights Movement by the 1960s—a connection brought home vividly and painfully during the April 1968 riots that followed Martin Luther King Jr’s assassination.
Five years after those riots and twelve years after the 23rd Amendment was ratified, Congress finally passed the District of Columbia Home Rule Act, giving DC residents the ability to elect both a mayor and a 13-member city council. In 1975, the city elected its first mayor, African American housing and civil rights leader Walter Washington; to date, seven of the city’s eight mayors have been African American, with the other, Adrian Fenty (who served from 2006 to 2010), having a mixed-race heritage. Each of these mayoral administrations deserves individual attention and analysis, of course; yet taken as a whole this history represents one of the most consistent and potent African American presences on the American political landscape. And I believe it’s fair to say that without the passage of the 23rd Amendment, and the national attention its ratification campaign brought to the issue of DC’s political representation and voice, the move toward Home Rule and the subsequent rise of the city’s African American political establishment might never have taken place (or at least have had far less visibility and effect). The 23rd Amendment is likely one of the least-remembered of the 27 current amendments, but its impact shouldn’t be underestimated.
Last AmendmentStudying tomorrow,
Ben
PS. Thoughts on this Amendment? Others you’d highlight?