An introduction to the main themes of the American Constitution—popular sovereignty, separation of powers, federalism, and rights.
Modern Moves, Part 2
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From the course by Yale University
America's Written Constitution
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From the lesson
Modern Moves
The surging Civil Right's Movement of the 1960's along with wars both cold and hot, made the political environment in the U.S. ripe for change. Prof. Amar explains out how amendments 23-26 continued making the United States' brand of democracy more universal and more egalitarian. After briefly covering the 27th Amendment, a question is posed to you, the learner: What do you think the next amendment to the Constitution should be?
Meet the Instructors
Akhil Reed AmarSterling Professor of Law and Political Science
Yale Law School
Welcome back. We're up to the set of amendments in the
1960s the most recent, really, set of amendments and the 23rd and 24th
Amendments. Fit very nicely into our general story.
The 23rd Amendment brings the District
of Columbia into the Electoral College System.
Remember the Electoral College System is one
in which different states are assigned electoral votes based on their population.
Originally pegged connected to the 3/5ths clause, but with
the end of slavery, the 3/5ths clause is dropped away.
But the Electoral College System is one in which states
are basically are the, the
fundamental units for determining presidential elections.
And the 23rd Amendment says, well, we're going to allow DC to be part of that
Electoral College System.
It's not going to be a state for the House of Representatives.
It's not going to be a state for the Senate, but we are going to allow it
to, to have a few electoral votes, as, as if it were a state in effect.
And the 24th Amendment is going to end prohibits
poll taxes. In states being used to
prevent people from voting in federal elections.
And for the, for example, for the Senate,
for the House of Representatives, for the Presidency.
The Supreme Court is going to take in the same era, the
1960s, some of the deep animating principles underlying that 24th amendment.
And actually say, gee, not only should
there be no poll taxes for federal elections,
there should be no poll
tax disfranchisement for state elections either.
So, how you might ask, does that fit into the general story thus far?
Remember the general story thus far has been a
story of democracy, national security, and slavery slash race.
So let's take the District of Columbia.
Here's one thing you need to understand about
D.C. There's a very substantial proportion of non-whites
who live in D.C. If African-Americans that's true today,
has been true for the last 150 years at least.
Remember early on, the district from before Abraham Lincoln's Presidency
the District of Columbia is actually a slave holding jurisdiction.
It's it's part of, it's on the boarder between
Virginia and Maryland both of which were slave states.
When the Civil War broke out. So there are a lot of black people who
live in D.C. and when you bring D.C. into the Electoral College System
you are advancing democracy. And actually the cause of racial justice.
And, democracy is itself a part of the process.
It's not just the result of D.C being brought in, but it's part of the process.
We've been talking about party competition, presidential parties.
Both parties support the Republicans and the Democrats support
this move to bring D.C. into the Electoral College fold.
And that's because in the middle of the 20th century, both the Republican and the
Democrat party are vying for the allegiance of African-Americans actually.
Before, FDR, blacks very reliably vote Republican party
Lincoln before 1932. After 1972 after sort of
the African Americans overwhelmingly vote democrat.
But between 1932 and 1972, so the black vote is kind of up for grabs.
Both political parties
are, are trying to get it.
Blacks are a swing Democratic a
swing demographic, excuse me, constituency, maybe like.
Hispanics are at the beginning of the 21st century.
So FDR has won a bunch of black votes and Truman is, has desegregated
the armed forces and, and, and when he runs for election in his own right.
It's the black vote that's the margin of victory.
Had Dewey, Thomas Dewey, who ran against him, actually won the African
American vote, Dewey would indeed have
beaten Truman and won the presidential election.
Eisenhower's trying to win back the black vote, and and both Nixon
and Kennedy in 1960 are vying for it. For the black vote and
D.C is kind of part of that
whole conversation about African Americans more generally.
And the 23rd Amendment is proposed under Ike and ratified under
JFK and I think it's a nice symbol of some of these issues.
Now how does national security.
Factor into this.
So we talked about democracy and we talked about race.
National security figures in,
in part because there's not just a domestic audience when
it comes to race relations in America, but an international audience.
We're in the middle of a cold war and
the Soviet Union is having a propaganda field day.
In Africa and Asia.
That's, that's the battlefield of cold war.
We're trying to win the cold war for the.
We're trying to win the hearts and
minds of brown skinned and black-skinned and yellow-skinned
people in Africa, and Asia, and South America.
And the Soviet Union is saying, oh, the United
States doesn't practice what it preaches, it has segregation.
It has discrimination.
Look, it's the national capital, it has a bunch of black people.
And they don't even get to vote fairly in presidential elections.
And the 23rd Amendment is, you know, trying to actually say to the
rest of the world, no, actually, we are trying to solve our racial problems.
Now you might say,
well D.C. was never in the Electoral College System.
It's not about race, it's just the
Constitution has different rules for it's territories.
And that made a certain amount of sense at the
founding D.C wasn't part of the Electoral College System but
neither were the territories and there were a lot of
territories and a lot of people lived in the territories.
But as the territories gradually became states.
Admitted on equal footing. Remember the story that we told thus far.
There are states, and the new states the territories.
The west wasn't being treated as a
permanent western colony of the east coast.
As those territories became states.
It's an increasingly anomalous that D.C was left behind.
So D.C, you know, was left out of
the system even as the territories became states.
And at the time that, that anomaly became
increasingly clear, when the west, the, the frontier ended.
And Wyoming, and Arizona, and
the other western states are finally coming in.
D.C.'s status seemed increasingly anomalous, and people started to notice.
A lot of black people are living there now.
And so, so D.C being brought into the fold is part of a larger geo-strategic story.
Remember, at the same time that this is happening.
Hawaii is becoming a state, the 50th state.
Hawaii Five-O.
Alaska is becoming the 49th state, projecting
beyond the continental lower 48, the contiguous lower.
48th, and there's a national security story there.
We want to project power after World War Two, into the
Pacific, Pearl Harbor, you know, was a scene of military disaster.
But we have to project power into the Pacific Rim toward Japan,
Alaska, borders on Siberia, The Soviet Union.
We want listening posts close to The Soviet Union.
Remember also Alaska has a pretty
substantial proportion of non whites,, Aleuts.
Native Americans.
Hawaii has a very large percentage of non whites.
So Alaska and Hawaii and D.C are all part of a story of the Cold War of race.
But also of increasing democracy.
This is also the era, the 1960s, that's going to
give us an Immigration Reform Act, that's going to make
it possible for people from Africa and Asia and
South America increasingly to come to the United States.
And this is part of a Cold War idea, we want to
be open to the talent of all the rest of the world.
And D.C. is part of that, that larger story.
Now
D.C. is still not quite given full treatment.
It's not in the House of Representatives.
It's not, doesn't have two senators, it's not admitted as a state.
And I'm not predicting, necessarily that, that will happen.
soon, because that the window of special
opportunity, I think, closed to some extent.
In the middle of the 20th century because, remember what I said.
Blacks are politically in play.
There are swing constituency between 1932 and 1972.
And they make a lot of progress in
part because both political parties are vying for them.
Much as earlier political parties didn't want to offend women, and so
at a certain point, both basically said, oh, we're for women's suffrage.
Well, now when blacks are in play both parties are, are wooing them.
But after 1972, blacks have quite reliably members
of the Democratic coalition, and not at all clear
that Republicans would support D.C. statehood.
For example, because that's going to mean two more Democrat Senators another one,
possibly two, members of the House Of Representatives who would be Democrats.
So, not at all clear that Republicans would
support more stuff for D.C today Constitutional or
tweaks or, or full statehood.
Not at all clear that today's Republican party would support that but
the Republican party of the middle 20th century, the party of Eisenhower.
Did very much support that and remember you know it's an Eisenhower
appointee, Earl Warren who, who hands down Brown versus Board of Education.
And in fact Eisenhower's Justice Department
supports Brown versus Board of Education.
And so so
in this period in the middle of 20th century,
both Republicans and Democrats are actually supporting civil rights.
and, and, and, and voting rights.
And that takes us, very naturally, to
the next amendment, which is about voting rights.
And it's an amendment that says, states shouldn't have poll taxes that prevent,
people, some, because they can't pay those taxes, from voting in federal elections.
Remember, under the original Constitution, you get to vote for The
House of Representatives if you can vote for your State Legislature.
So state law sort of defines in the
first instance who's eligible to vote even for Congress.
Remember, states regulate how the presidential electors are to be selected.
It's a state-defined electorate that picks Senators
under the 17th Amendment, the direct election
amendment, and 24th amendment said, well,
for Federal Elections, the inability or the
unwillingness to pay a poll tax should never be a basis for disenfranchisement.
You should be allowed to vote whether you pay a tax or not.
This is a grand, egalitarian republican idea,
or small r republican, small d democrat.
Both the Republican and the Democrat party support this amendment.
And the Supreme Court.
The Supreme Court that's led by a
Republican chief justice, but has a majority
of New Deal Democrat appointees on it, is going to go one step further and say.
Not only should there be no pool
tax disenfranchisment for state, for federal elections.
We shouldn't have it for state elections either.
A republic.
A republican government, small r should be a government of the people base republica.
The peoples thing, not the
properties thing. Not the, it's not about money or taxes.
It's about The, the people deciding whom they wanted to re, represent them.
And so these amendments the 23rd and the 24th are
are powerful extensions of this democracy idea that we saw.
The founding, that carried forward through the reconstruction that was
further elaborated by the, for example, the direct election of Senators.
In the progressive era, so that general story continues with these amendments.
And at the very same time that these amendments
are being proposed republicans and democrats in the middle.
Of the 1960's are going to get together and pass an epic
Voting Right Act that further reinforces the idea of Federal Protection of voting
rights implementing the grand themes of the 14th Amendment and the 15th Amendment.
Had, to some extent, lain dormant.
because here is one thing.
[COUGH] The dirty little secret that I did mention about poll taxes.
Poll taxes are basically used in the form of confederacy
at when in the 1960s those were the only states that
really had poll tax disenfrachisement,
and they probably disenfrachised blacks disproportionately.
And and this amendment and the Supre-, accompanying Supreme Court cases.
Extending this amendment understood all of that.
So definitely a story of race and and the voting rights act of 1965 following on
the heels of the civil rights act of
1964, acts supported by Republicans as well as Democrats.
Party of Lincoln Republicans as well as Democrats
that are trying to repudiate new democrats the legacy.
Of the old democratic party which is about slavery and segregation.
this, this coalition that gives you the Civil Rights Act of' 64, the Voting Rights
act of '65 is doing so again in part with attention to a world stage.
Trying to persuade people of good will in Africa,
in Asia and South American that America actually is
an open society that really does practice what it preaches.
Which is, after the 13th, 14th, and 15th amendments equality, which is after Direct
Election of Senators, and idea of, of equal voting and one person one vote.
And indeed in this era the Supreme Court is going to give us some landmark
cases which we're going to talk about much later in, in this lecture series on
the idea of one person. One vote.
25th Amendment, it's also about war, in particular a
Cold War. After President Kennedy's assassination,
Americans realized, with sort of blinding clarity, that the rules of
presidential succession need to be modified Yeah.
God forbid had President Kennedy been in a coma, lingered for a long period of time,
maybe in a persistive vegetative state. Something that, it was not entirely
clear how the, a Vice-President could pronounce a President
sort of unable, disabled to discharge the office and put himself forward and.
And in a Cold War with
nuclear weaponry minutes can matter.
I mean there always has to be someone ready to take charge in between and
the original Constitution didn't have a very
elaborate system specifying who should declare President disabled.
It also said that if a President, did die, and the Vice President became
President, came forward.
The Constitution didn't provide a mechanism a,
a backup for creating a new Vice Presidency.
So for 40 years of American history, before
the 25th Amendment, America basically didn't have a Vice-Presidency.
because the Vice-President had died, and there was no way of filling that vacancy.
Or the Vice-President had resigned, and there's no way of filling that vacancy.
Or President had died and, or,
or resigned, become disabled and the Vice-President had moved up.
Into the presidency.
And again, there is no way to feel a vacancy.
The 25th Amendment plugs some of those gaps, and it's
in part motivated by Cold War reality that minutes can
count, even seconds can count, and there has to be
a person capable of making decisive decisions at every moment.
And the 25 Amendment says, look if a President dies, the Vice President
actually officially becomes President, made that
clear, there was maybe ambiguity about that.
That had been our tradition but the 25th Amendment makes that very clear.
If a Vice President becomes President because the President has died
or resigned, we can, that incoming President can.
Fill the Vice Presidential vacancy, can nominate
someone basically to to be the new
Vice President subject to special Congressional confirmation process.
And if a sitting President is going to undergo some planned surgery
or something that, like that know he's going to be out of action.
For a while, know he's going to be temporarily disabled.
He can provide, the, the 25th Amendment provides a mechanism by which
he can basically officially designate the Vice President as the person in charge and
then when he recovers take that back.
Very easily allowing seamless hand-offs of power
back and forth between President and Vice President.
It's a constitutionalization of the tag team idea, the ticket idea.
The President and Vice President are going to work very closely together.
President's are going to be picking their Vice
President's under the 25th Amendment as as Richard Nixon
will hand pick.
Gerald Ford when the Vice Presidency becomes vacant, when Spiro Agnew resigns.
And Ford in turn will pick Rockefeller when he, Gerald Ford, becomes president.
This is a kind of textualization of the idea.
That the political, in the political party what's emerging as
a tradition that the Presidential nominee hand-picks his running mate.
That wasn't so clear for much of American
history but it is, it's more clear today in political party practise and
in the text there is this close
working relationship between Presidents and Vice Presidents.
Presidents basically pick their running mates, their running
mates often succeed them, they're their wing man,
and they can hand off power back and forth in cases of, of an anticipated disability.
So let's say a planned surgery, or something like that.
and, one of the big areas of vulnerability.
If all this is true, we're going to talk in
later lectures about whether the other rules of Presidential succession.
The statutory rule makes sense.
Does it make sense if you really want Presidents to
hand over things very easily to the next in charge.
Does it make sense that after the Vice President.
The next person in the statuted is the Speaker
of the House.
Who might be a member of the other party rather than say, the Secretary of State.
Who would be part of the same Presidential administration.
In other words does it make sense if something happens
to both Ronald Reagan and George Herbert Walker Bush at
the same time, you know, would it make sense to
have, to, if something happened to these two republicans, have.
Democrat Tip O'Neill take over rather than a Republican Secretary
of State.
If something happened to Obama and Biden, would it make
sense for Boehner to take over, rather than, say, John Kerry.
That's something we're going to come back to in later lectures.
The 26th Amendment which is also is also a, a product, it seems
to me, of our, our great themes of, of, of, of race, democracy,
and national security.
The 26th Amendment says that 18 year old get to vote.
And they have a constitutional right to vote.
Not to be discriminated on grounds of view.
And couple things one.
Young a, adults are, are actually in America in recent history have been more
likely demographically to be non-white. So, so this is actually remember
that brings more non-whites into the process proportionately just
as getting rid of poll taxes has a racial
effect that's racially inclusionary. It's an expansion of democracy.
Both political parties actually are, were in favor of it so both parties were
sort of competing for the young American vote in the way that they earlier
competed for the woman's vote or, and were competing for the black vote in the middle
of the 20th century are now competing for the Hispanic vote, swing constituencies.
And what's the larger story? Obviously
Vietnam.
If 18 year old are old enough to fight and
die in Vietnam, to be drafted even against their will,
to fight there, then they're old enough to vote on
whether we should be in that war in the first place.
So thought Barry Goldwater, Mr. Republican on the right.
and, you know, Richard Nixon, a Republican President and Democrats on the left.
It's a story that we've seen over and
over again, connections between national security and democracy.
If you're old enough to fight, you're old enough to vote.
Just as at the founding.
If unproperty people could fight in the American Revolution
and they did, as, you know, loyal militiamen and sailors
at, at places like Lexington and Concord and Bunkers
Hill and Washingtons Army and on, on the high seas.
If unproperty people were, you know, we were willing to take
them and, and, and have them fight for the patriot cause.
They should be allowed to participate and vote in this new system.
And after the Civil War, if black men could risk their lives and limbs for
the Union. They should be allowed to, to vote and,
and that's the 15th Amendment. And we, we saw that dramatic picture.
If women are really part of the the economic a support structure for our
wars as they were in World War I. They should be allowed to be equal voters.
Young adults, if they are fighting and dying in Vietnam, risking their
lives and limbs, they should be allowed to vote on that thing.
On that war, and everything else.
So the 27th Amendment, I'm not going to say a lot about.
It was proposed actually in the founding era,
and then gets ratified, you know 200 years later.
It's an amendment that says that
congressional pay changes, especially congressional pay increases.
Can't go into effect until there's been an intervening election.
So it's a pro democracy amendment basically saying
certain things shouldn't happen until the people weigh in.
It's a smallish amendment, a kind of tweak.
It's kind of interesting just because it was
originally proposed by James Madison.
Passed the House by 2 3rds, the Senate by 2 3rds.
Not enough states ratified, but eventually 200 years later,
enough states did to put it over the top.
The story's told in more detail in the book.
What I want to end, my lecture today, a, with, before I talk
about this picture, remember we're always
talking about pictures, is the 28th Amendment.
You say what? 28th Ammendment, what 28th Amendment.
Exactly, our Constitution, the end of our
Constitution, in my view, isn't the 27th Amendment.
It's the vast creative white space.
After the 27th Amendment.
Remember, we keep adding amendments in textual order.
The Constitution almost has a kind of unfinished look to it.
We don't word process it and stick and,
and rewrite the thing start to finish, so it
looks complete. It always looks kind of incomplete.
Why 27 rather than 28 or 29 or 37?
So, the most interesting question is
what's the next amendment going to look like.
And the amendment after that, the amendment after that?
That, is a question for, for our generation, and our posterity.
It's a question, my fellow citizens, for you to ponder.
What amendment would fit the story that we've been telling,
that would be a suit, a suitable next chapter to this epic unfolding.
American saga and with that I think we come to
kind of where the written constitution ends and the unwritten begins.
One idea of an unwritten constitution is the constitution still to be written.
The amendments of the future and the 28th Amendment is
I think one way to really think about what is this
story thus far? What has been done?
What remains to be done that would be
fitting as part of this extraordinarily inter-generational project?
Because remember, the Constitution is not just about the founding.
It's about the amendments as well, and those amendments
are on, you know that, that possibility still continues.
Earlier generations made amends
for the sins of the fathers.
Their pro slavery aspects for example, the original Constitution.
And this generation can do the same, it's up to us.
We will talk about that a lot over the second half of the
course when we talk actually in
rather great detail about the unwritten constitution.
But for now, I just want to close this lecture with this picture.
This is a picture of The March On Washington
in 1963.
And, note how it's a continuation, really, of the story we've told thus far.
We began chapter one with the Preamble, We the People.
Ordinary people getting to decide how they and their posterity would be governed.
Getting to vote, getting to deliberate, discuss, participate.
Extraordinary.
And then we had images of freedom of speech in debate in,
in the early Congresses.
Henry Clay speaking with Daniel Webster and John C.Calhoun and, and the gallery.
Listening and then we talked, talked about how in the Civil
War black men risked their lives and limbs for the Union.
And in the process won the full rights of political participation not
just freedom with the 13th Amendment but Civil Equality in the 14th and
voting rights in the 15th.
And then we saw in the last chapter women taking to
the streets and demanding full and equal justice, demanding suffrage rights.
And the story continues here with another group
of Americans taking to the streets to demand freedom.
and, an end to bias. Equal rights now,
integrated schools now. An end to police brutality now.
Some of the demands you see, they're almost ripped from the headlines.
Some of the same. Issues are the issues of, of, 2013.
I'm actually giving this lecture
at a time of the 50 anniversary, really, of the
March on Washington. This was 1963, 50 years ago.
And and that story, ordinary people taking
to the streets, appealing to their fellow citizens.
This is where Martin King gives that famous, I Have a Dream, speech.
This is the day that he, he does that.
And both Republicans and Democrats are marching.
Blacks and whites, men and women, Jews and gentiles.
Gays and straights. Not as many openly gay.
But some of the people actually in charge of this march were in fact, gay, we now
know. And they spoke, Americans listened.
The result of, of this taking to
the streets will be epic Constitutional achievement.
Some statutory, some in the case law.
Like the Civil Rights of 6, Acts, Act of 64.
The Voting Rights Act of 1965, landmark Warren
court opinions on just some of these issues.
We will talk a lot more about some of that in the second half of this course as we
explore America's unwritten constitution. So, I hope to see you for that.
Stay tuned.
[MUSIC]
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