Wednesday, July 04, 2007

Three Amendments that Changed America

I am a structural determinism. I believe that the way things are structured largely determines the outcome. I believe that the inherently inert structure of the Federal Government has allowed it to endure. The Framers wanted a government which was capable of action, but could not act except in times of great consensus, which practically meant great urgency or peril. They built a structure which was to lay lightly over the state governments and allow the government closest to the people do most of the work.

Over time we have evolved away from that, partly due to the needs of a larger more complex society and a more tightly integrated economy, much to our individual detriment.

I have this theory of the United States Constitution that three amendments to the Constitution substantially changed the nature of our country and concentrated previously diffuse power in the Federal Government. In one case this was I believe substantially aided by the interpretation of one of the amendments by the Supreme Court. I've told a few friends of this theory and one encouraged me to write about it. Today Seemed a good day for it.

Most of my theory is based on the change in the relationship between the Federal Government and the States.

The first major change was as a result of the Fourteenth Amendment, the applicable portion is quoted below.
The Fourteenth.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Fourteenth amendment was intended to insure that the former Confederate states could not impose restrictions on the newly freed slaves. It ended up going much much further.

The Supreme Court interpreted the Fourteenth Amendment as it applied it to the states and extended the effect of the First Amendment to the States. The First Amendment was unique in that it previously applied only to Congress, and therefore only to the Federal Government. Prior to the Fourteenth amendment, or example, the states were free to establish a religion (which many of them had at the time of independence) or impose restrictions of the freedom of the press or speech. Although most states had similar guarantees in their own Constitutions this amendment allowed Federal Judicial Constitutional review (something not actually in the Constitution and assumed by the Judiciary by judicial fiat), to the states for the first time.

I think the unintended consequence of this action is the extension of Federal Judicial oversight into areas the framers never imagined. Things like public prayer, abortion, marriage, capital punishment and more.
The Sixteenth.

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.
The Sixteenth gave Congress the unfettered power to lay an all encompassing tax on all residents. This tax was so enormous in its effect it gave the Federal Government the power to coerce the States into all sorts of things. It allowed the States to forgo raising taxes directly as the Federal Government, aided by inflation, economic expansion and Income Withholding to tap a tsunami of cash, which could then be used to bribe the states into all manner of things, some good and some not so good. Additional revenue was necessary to support the national government but the previous restrictions on Federal Taxes served to keep the government small and tending to its own business.
The Seventeenth.

The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.

Previously Senators had been selected the state legislatures.

Article I

Section 3.
The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.

Losing the anchor to the State legislature, and insulated by long terms in office every Senator became an Independent Operator. Their long tenure and the lack of accountability to anyone except, occasionally, the voters allowed Senators and the Senate to pursue their own agendas for much of their terms. The primary effect was to deny the states any direct participation in the National Government.

Interesting that both the Sixteenth and Seventeenth amendments were ratified in 1913.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk


A. said...

Intriquing -although this part

"Prior to the Fourteenth amendment, or example, the states were free to establish a religion (which many of them had at the time of independence)"

I think is slighty overstated. The first thing they (the states) did was disestablish state sponsored churches. According to Wikipedia (I love that thing) the last state curch was disestablished in 1818; Most had disestablished at the beginning of the Revolution. Although a handful of states had clauses requiring church memerbship to hold public office or limited it to Protestants until the Civil War, it was a very very few. The vast majority accepted the principle of de jure seperation of church and state at all levels.

The choice of the 17th Amnedment is interesting. Most historians and such see it as the final step to true enfranchisement of the unwashed and much feared masses (except for women en masse) but your take is novel. Could you expand that? (oh- both the 16th and 17th were the culmination of decades of reform activities generally credited to the Progressives, but the roots go much deeper - the Populists, Farmers' Alliance, Grange and Greenbackers had advocated BOTH since the mid 1870s as well as the secret ballot and governmental ownership of utilities such as the railroad.)

Are you a strict constructionist or do you beleive that the Constitution and its interpretation changes as our society changes? I think Hamilton intended his Elastic Clause to allow the various expansions and contractions of power you discuss- maybe not in the way it played out, but in theory and principle. (He, for one, would never have been on board with direct election of Senators.)

mominem said...

Note I said "at the time of Independence." I'm well aware that long before the 14th amendment was passed every state had voluntarily disestablished their religion. My point was that as far as the national government was concerned that was their choice. Utah might have tried to establish a religion after becoming a state in 1896 although I strongly doubt it.

Presumably the states were also free to abridge the freedom of speech, or the press; or the right of the people peaceably to assemble. None of them did to any major extent.

The real significance was that the states had much greater latitude prior to the 14th amendment and the federal courts expansion of the first amendment to the states. I'm not sure that expansion was entirely intentional. The courts might have decided the 1st amendment, as written, was an limit on the power of Congress, not a right of the citizens, leaving the states their original freedom of action.

I think it was an intentional decision to make the states an opposing force to the gradual accumulation of power in an oppressive national government.

The 17th amendment removed one of the major checks on the accumulation of power at the national level. The states jealously guarded their independence, especially prior to the Civil War, when most people believed secession was a real option. The Senators, selected by the State Legislature for their national stature and loyalty to their home state, were more responsive to the needs of the State than the national government.

This tension between the major levels of government was a brake expansion of the national government at the expense of the states. The people who advocated the reforms did so largely because they believed a more active government which would do exactly what it did, weaken local power structures, particularly banking interests, in the favor of what we would now call more socially responsible policies.

I'm not sure they would entirely approve of the eventual outcome happened. It seems to me we now have a greater concentration of wealth and power, partly as a result of these "reforms".

Most people today seem to want the government to be more active, but only in their direction. I view that as generally destructive. The current system concentrates power by allowing a few single issue people on the national level at choke points both in and out of government to have excessive control over small slices of the country.

The original system of diffuse government prevented any one level form becoming too powerful. Most people forget or never understood the national government was designed to lay lightly over the country, becoming active only when the interests of the entire country were at stake. It was designed to be in a constant state of grid lock.

I consider myself neither a strict constructionist nor do I believe in such an elastic interpretation that allows the courts to serve as a "Supreme Council", as occasionally has happened.

I consider myself a structural determinist, and believe the framers were as well. I am not a constitutional scholar or even a lawyer. I simply believe the way you construct the structure of an organization will eventually over come the will of individuals who set up the structure.

My purpose was not to advocate or criticize these changes, but rather to point out that these seemingly small changes had an enormous effect in the balance of political force in the country.