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Constitutional FAQ Answer #17

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Q17. "Beyond the Bill of Rights, few Constitutional amendments have radically altered the American system of government. Slavery was actually abolished by warfare, rather than legislation. In all probability a new Supreme Court majority would have authorized the graduated income tax. Senators were actually chosen by the people long before the amendment was passed; women would today have the vote, Nineteenth Amendment or no. Is this analysis valid? Can you find further evidence to make this point? Can you think of evidence that contradicts this thesis?"

A. I think that this analysis has merit, but I don't think it is completely valid, either. Just to use the examples in the question:

The point about slavery is probably partially right, though even the Constitution was a beginning of a change to the way the U.S. handled slavery — after a certain date, no new slaves could be "imported" to the U.S. (Article 1, Section 9, Clause 1). All new slaves had to be naturally born into slavery. It may not seem like much of a step forward, but it was. And one catalyst for the Civil War may have been slavery, but it was so much more than that. The 14th amendment, with its due process of law clause, has been one of the most influential pieces of legislation this nation has seen, aside from the original Constitution and Bill of Rights itself. Without the abolition of slavery written into law, it could easily have cropped up again in either the deep south or some of the new south western states.

If the income tax had not been codified into the Constitution, it is likely that a future Court might have allowed an income tax (in fact, one was passed around the time of the Civil War, but never really implemented). But, when the tenure on the bench changed and the national appetite for taxes went sour, it would have been struck down again. I'm not saying that I like the income tax (God knows!) but without an amendment, it would have been passed and challenged and overturned and affirmed.... what a mess.

Senators may have been chosen indirectly by the people in some states, but the fact remained that the power to choose Senators was in the hands of the state legislatures, and not the people. The 17th amendment made sure that the power to choose senators was in the hands of the people, and not some state legislature or executive branch. It brought a small measure of democracy to the people that the original framers didn't think we could handle.

And lastly, I think that women's suffrage was the genesis of equality among the sexes, rather than women's suffrage being an inevitable part of some burgeoning equality among the sexes. Though the Constitution itself never says that women cannot vote, the 14th amendment extends the right to vote to all males, 21 or over. I don't think that a state would have been prevented from allowing women to vote, but I don't think that women bringing a state to court could have compelled that state to let them vote, either. And with legislators in such a state elected by men, there would have been a clear conflict in any efforts to grant suffrage. A national mandate, a constitutional amendment, was the only way to go about this.

Now, it is true that many of the later amendments have had little practical effect on everyday life - the line of succession to the presidency or the two-term limit, or even the right of D.C. citizens to vote has little effect on Everyman. But there are two points - first, the Constitution is a mature document. Right now, we are fine tuning it to fit new situations and our evolving society. Second, the most sweeping changes lately have not been in the Constitution itself, but in its interpretation. The cases of the past 50 years, Brown v Board, Bakke, Miranda, FCC v Pacifica, Roe v Wade, etc., have been turning points in our societal, judicial, and legislative history.


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