The Penguin Guide to the United States Constitution Part 6

AMENDMENT I (1791).

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to a.s.semble, and to pet.i.tion the Government for a redress of grievances.

The First Amendment is remarkably brief considering the breadth of protection that it has provided. The section of the amendment prohibiting Congress from making any law "respecting an establishment of religion" is a cornerstone of the American notion of separation of church and state, and the guarantee of "free exercise" of religion has proven a powerful means by which people have been allowed to express their religious beliefs without fear of government reprisal. Similarly, the guarantees of freedom of speech, of the press, and of the "right of the people peaceably to a.s.semble," as well as the right to pet.i.tion their government (and by implication to protest the actions of that government) are at the heart of the American const.i.tutional definition of liberty.

Those freedoms have, however, been subject to some restrictions. Until the early twentieth century, the First Amendment applied only to the actions of the federal government; state governments were free to pa.s.s their own laws contravening some of the provisions of the First Amendment. For example, the state of Ma.s.sachusetts continued to accord the Congregational Church special privileges and did not move to explicitly separate church and state until 1833. Moreover, throughout the nineteenth century, and sometimes into the twentieth, state governments have enacted laws placing restrictions on speech, freedom of the press, and on certain forms of public a.s.sembly. It was only in the twentieth century, through application of the "incorporation doctrine," that the Fourteenth Amendment's guarantee that states must not "abridge the privileges or immunities of citizens of the United States," nor deny citizens "equal protection of the laws," began to obligate state governments to guarantee their residents the same freedoms as those articulated in the First Amendment.

The precise extent of the guarantees of the First Amendment continues to be a subject of contention. Oliver Wendell Holmes, in a Supreme Court opinion in Schenck v. United States (1919), made the commonsense argument that the guarantees of free speech do not extend to the right to shout "fire in a theatre and causing a panic" when no such danger actually exists. Governments have often a.s.serted the right to regulate public a.s.semblies and protests in order to ensure public safety.

Similarly, the "wall of separation" between church and state is not impenetrable. The United States Congress continues to employ a chaplain, and the word of G.o.d is frequently invoked at many official government gatherings. The federal courts are frequently presented with cases in which litigants claim that public displays of religious belief (e.g., the displaying of a Nativity scene in a public square at Christmastime) violate the principle of separation of church and state. Thus far there is no clear resolution of where the boundary between a religious and a civic display lies.

AMENDMENT II (1791).

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Second Amendment contains two parts: a preface, which states that a "well regulated Militia" (meaning a citizens' army authorized by the state) is a necessary and desirable thing, and the operative section of the amendment, which a.s.serts the right of the people to keep and bear arms. Const.i.tutional scholars have argued vociferously about whether the comma separating those two parts signifies that the right to keep and bear arms without state interference is confined to the use of such arms in conjunction with one's duties as part of a government-sanctioned militia or army, or whether there is an individual right to keep and bear arms under any circ.u.mstances. The most recent ruling of the Supreme Court (District of Columbia v. h.e.l.ler, 2008) suggests that the Second Amendment does guarantee an individual, as well as a collective, right to bear arms, but the Court has also conceded that there are some instances (e.g., regulating the sale of a.s.sault weapons) in which local, state, and federal governments do have the right to regulate the sale and use of arms. Like many aspects of the Const.i.tution, the meaning of the Second Amendment is subject to varying interpretations.

AMENDMENT III (1791).

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

This amendment, which has lost much of its immediacy over the course of time, was considered of pressing importance by the members of the First Congress, who drafted it because attempts to force Americans to provide lodgings for British troops (whom they considered to be hostile occupiers of their land) during the years leading to the Revolution were an important cause of that revolution. The amendment does, "in a manner to be prescribed by law," allow the government to use private homes to provide lodging for its own soldiers in time of war. More generally, the Third Amendment has-along with the Fourth, Fifth, and Ninth Amendments-been interpreted to imply another right not explicitly mentioned in the Const.i.tution: the right of privacy.

AMENDMENT IV (1791).

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The guarantees against "unreasonable searches and seizures" of persons, houses, and property, and the insistence that any such searches be based on "probable cause" and accompanied by search warrants, were another product of Americans' experience during the Revolution, when British customs officers and soldiers carried out blanket searches and seizures without proper warrants. In recent years, through use of the incorporation doctrine, the Fourth Amendment has been interpreted to mean that police officers at all levels of government must demonstrate probable cause before stopping and searching anyone whom they might suspect of a crime. The precise definition of "probable cause" has been much debated, and in many cases police officers are forced to make difficult judgments about whether they should detain an individual and search his or her possessions.

In an age in which advances in technology have offered the government new ways to gather evidence of a possible crime-e.g., wiretapping and other means of sophisticated electronic surveillance-the federal courts have been presented with new dilemmas about how to interpret the provisions of the Fourth Amendment. Enactment of the Patriot Act in the aftermath of the 9/11 attacks in 2001 has significantly expanded the government's ability to carry out such surveillance.

AMENDMENT V (1791).

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Reflecting long-standing traditions of English common law, as well as the American perception that the British had violated those traditions in the years leading up to the American Revolution, the Fifth Amendment requires that people charged with capital crimes (i.e., a serious crime that falls under the jurisdiction of the federal courts) be first presented before a grand jury-a group of ordinary citizens drawn from the general population. Those serving in the military are not afforded that protection; they are to be tried in military courts, which set their own rules of judicial procedure.

Although indictment by a grand jury is standard practice in important civil and criminal proceedings at the federal level, many states have not used this mechanism for securing indictments of accused criminals, believing that grand juries are unnecessarily costly and time-consuming. Although many of the provisions of the Bill of Rights have been applied to the actions of state governments through the incorporation doctrine of the Fourteenth Amendment, the Supreme Court has not a.s.serted that states are bound to conform to this particular provision of the Fifth Amendment.

The provision of the Fifth Amendment preventing double jeopardy stipulates that individuals cannot be tried for the same crime more than once. If a defendant is acquitted of a crime, the government does not have the right to prosecute that individual again, and if a defendant is convicted, the government may not impose multiple punishments for the same crime.

The phrase "taking the Fifth" refers to the provision of the Fifth Amendment ensuring the right against self-incrimination: the right to refuse to answer questions in court that might lead either to indictment or punishment for an alleged crime. Finally, the Fifth Amendment contains a very open-ended guarantee, echoing the words of the preamble of the Declaration of Independence, that no person can be deprived of the fundamental rights of life, liberty, or property without due process of law.

The concern for protection of property is further emphasized in the prohibition of the taking of private property for public use "without just compensation." In fact, federal and state governments have often taken control of private property (for example, for the purposes of building a highway or some other necessary public work) by using the doctrine of "eminent domain." In those cases, the owners are compensated for the value of their property, although in many cases not without significant litigation.

AMENDMENT VI (1791).

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the a.s.sistance of Counsel for his defence.

The Sixth Amendment is appropriately considered the center-piece of the American criminal justice system. In addition to guaranteeing all criminal defendants a trial by jury, it provides an outline of the basic procedures to be followed in such trials. The trial shall be a speedy one, which is to say that accused criminals cannot be imprisoned for lengthy periods of time before receiving a trial. The trial must be public. The framers of the Sixth Amendment specifically rejected the format of English Star Chamber proceedings; that is, proceedings held in private, away from scrutiny by the public. The juries in criminal trials should, in normal instances, be drawn from ordinary citizens who are resident in the state and region where the crime was committed (although in unusual cases, if the crime is of such a sensational nature that it might prove impossible to impanel an impartial jury, the trial might be held in a jurisdiction other than the one in which the crime was committed).

The Sixth Amendment also guarantees to the accused the right to be confronted with the nature of the charges brought against him; the right to confront, either directly or through an attorney, the witnesses against him; and the right to present witnesses in his defense. Finally, criminal defendants are ent.i.tled to "a.s.sistance of Counsel"; that is, a competent attorney to a.s.sist them in their defense. These basic guarantees have been elaborated in countless court cases in the more than two hundred years since the amendment was ratified and, through the incorporation doctrine, have become the standard procedure for criminal trials in states and other localities as well as in federal courts.

AMENDMENT VII (1791).

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The Seventh Amendment provides guarantees similar to those of the Sixth with respect to civil suits, although it does limit the right of trial by jury to suits in which there are substantial sums of money involved. The terms and extent of the application of this amendment have been worked out through myriad court cases involving plain-tiffs (the person bringing the suit) and defendants (the person being sued). For example, while the standard for conviction in a criminal trial is a jury's unanimous verdict that the accused criminal is guilty "beyond a reasonable doubt," a jury in a civil case may award damages to a plaintiff if a majority of jurors find a "preponderance of evidence" on his or her behalf. The incorporation doctrine has not been applied to this amendment and, for the present, civil suits tried in state and local courts may follow different procedures from those outlined in the Seventh Amendment.

AMENDMENT VIII (1791).

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The prohibition against excessive bail (a sum of money put up to gain release from prison while awaiting a trial and returned if and when the accused appears for trial) is a reflection of the belief that an accused criminal is "presumed innocent until found guilty." The definition of "excessive bail" is a subjective one, but the intent of the amendment is to demand a sum of money sufficient to guarantee that the accused does show up for the trial, but not so high as to make it impossible for the accused to gain release.

The prohibition of "excessive fines" is intended to a.s.sure that "the punishment fits the crime." It is closely connected in its rationale with the final section of the amendment, the guarantee against "cruel and unusual punishments." Again drawing on English common law traditions, Americans were seeking to move away from ancient practices of gruesome punishments for relatively minor offenses. The definition of "cruel and unusual punishments" has often proven a point of contention. Currently, opponents of the death penalty argue that that punishment qualifies as cruel and unusual. Except for a period during the 1970s, the Supreme Court has not agreed, and both state governments and the federal government are free to permit executions if they desire (at present, thirty-five of the fifty states have laws permitting death penalties in some cases-usually, but not exclusively, murder cases).

AMENDMENT IX (1791).

The enumeration in the Const.i.tution, of certain rights, shall not be construed to deny or disparage others retained by the people.

One of the reasons given for the framers' omission of a Bill of Rights from the original Const.i.tution was their fear that if they unintentionally failed to mention some fundamental rights in such a listing, those rights might go unprotected. That concern caused many of the delegates to fear that any debate over a bill of rights might drag on for weeks or months, as they sought to cover every conceivable right. The Ninth Amendment makes it clear that the list of rights mentioned in the Const.i.tution and its amendments do not const.i.tute all the possible rights to which the people are ent.i.tled. Over the years, the courts have defined "unenumerated" rights, such as the right to vote; the right to move about freely; and, perhaps most controversially, the right to privacy, including the right of a woman to have some control over her health and reproductive decisions.

AMENDMENT X (1791).

The powers not delegated to the United States by the Const.i.tution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

When the Const.i.tution was presented for ratification to the people of the thirteen independent states, many were surprised-and alarmed-by the extent to which powers previously exercised by the states (for example, taxation and control over commerce) were now to be exercised by the federal government. In the words of Virginia statesman Patrick Henry, the new government was not really "federal" in character but rather a "consolidated government," one which would render the ident.i.ty and powers of the states meaningless. The Tenth Amendment reserves all powers not specifically given to the federal government by the Const.i.tution (most of which are contained in Article I, Section 8, in the enumeration of the powers of Congress) to the state governments; it was intended to allay fears about the federal government possessing excessive power.

In one sense, the Tenth Amendment is one of the most important features of the Const.i.tution, for it articulates the principle that the federal government is one of specifically delegated powers, and that it should only exercise those powers explicitly enumerated in the Const.i.tution. But in fact, the Tenth Amendment, because of its generality, has not proven to be much of an impediment to the steady expansion of federal power since the time the Const.i.tution was adopted, although opponents of "big government" have in recent years invoked the Tenth Amendment in their arguments with greater frequency.

AMENDMENT XI (1795).

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

In 1793 the Supreme Court ruled that it had a right to hear a suit brought by two citizens of South Carolina against the state of Georgia. Many members of Congress and of the state legislatures vigorously criticized the court's ruling, claiming that the federal courts had no business interfering with the "sovereign immunity" of state courts. The Eleventh Amendment reserved to the individual states the right to hear cases brought against them either by citizens of another state or another country. As is the case with many of the amendments to the Const.i.tution, the Supreme Court has ruled that there are exceptions to this general rule. For example, since 1824 the Supreme Court has held that state government officials are not immune from being sued in a federal court if they act in violation of a right guaranteed by the U.S. Const.i.tution.

AMENDMENT XII (1804).

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other const.i.tutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person const.i.tutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

When the framers of the Const.i.tution devised the complicated process by which presidential electors would select the nation's president and vice president, they a.s.sumed that those electors would run for their offices as individuals, and that the voters would select them on the basis of their individual merits. In that original notion of the way the electoral system would work, it was expected that the electors would each cast two ballots, with no distinction between a presidential and a vice-presidential ballot, and that the person receiving the greatest number of votes would be elected president and the person receiving the next largest number of votes vice president.

The framers of the Const.i.tution did not antic.i.p.ate the emergence of an organized political party system in which two extra-const.i.tutional political parties, the Federalists and Jeffersonian Republicans, would organize electors (or, in some states, slates of electors) pledged in advance to vote for presidential and vice-presidential candidates as part of a party "ticket." In the election of 1800, the party ticket of Thomas Jefferson (the person whom the Republicans intended as their presidential candidate) and Aaron Burr (the person whom the Republicans intended as their vice-presidential candidate) received a majority of electoral votes. In fact, though, party discipline was so great that the electors cast their votes on their two ballots in such a way that Jefferson and Burr had an equal number of votes, with no const.i.tutional mechanism for deciding which of the candidates was intended to be the presidential candidate and which the vice-presidential candidate. As a consequence, the election was thrown into the House of Representatives, where, after a great deal of intrigue, Jefferson was selected as president and Burr the vice president.

The adoption of the Twelfth Amendment was a necessary adjustment to the way in which the American party system had transformed America's presidential elections. Although the provisions of the Twelfth Amendment are as mind-numbingly complicated as the original provisions of Article II, Section 1, the essential feature of the amendment was that henceforth electors would vote separately for the president and vice president. And while the original language in Article II, Section 1, stipulated that the House of Representatives would choose among the five leading candidates should no one receive a majority of electoral votes, the new provision in the Twelfth Amendment narrowed the choice to the top three candidates.

AMENDMENT XIII (1865).

SECTION 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

SECTION 2.

Congress shall have power to enforce this article by appropriate legislation.

The Thirteenth Amendment was pa.s.sed by Congress in 1861, as the Southern states were seceding from the union, but not ratified until 1865, after the South had accepted defeat in the Civil War. It marked the first important step in bringing American const.i.tutional practice into harmony with American libertarian values. Although there had been previous, private attempts to eliminate slavery, usually accompanied by promises of compensation for the value of the "property" lost as a consequence of the emanc.i.p.ation of slaves, the Thirteenth Amendment unequivocally abolished slavery, providing for the immediate emanc.i.p.ation of all slaves in the United States, without compensation to their owners. It also gave to Congress the power to enforce the emanc.i.p.ation of slaves, a power that it exercised in the Civil Rights Act of 1866.

AMENDMENT XIV (1868).

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.

SECTION 2.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for partic.i.p.ation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

SECTION 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Const.i.tution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

SECTION 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall a.s.sume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emanc.i.p.ation of any slave; but all such debts, obligations and claims shall be held illegal and void.

SECTION 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Perhaps the most significant and far-reaching amendment to the Const.i.tution, the Fourteenth Amendment is viewed by many scholars and jurists as the provision of the Const.i.tution that has brought the principles enunciated in the preamble of the Declaration of Independence into the realm of const.i.tutional law. The words of the preamble of the Declaration-"that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness"-are purely exhortatory; they were important rhetorically in defining American purposes as they declared the colonies' independence from Great Britain, but they do not have the force of law. At the heart of the Fourteenth Amendment is the stipulation that all Americans born or naturalized in the United States, including the newly freed slaves, are citizens of the United States, and that no state may make or enforce any law that shall infringe on the rights of American citizens, including those unalienable rights of "life, liberty or property" without due process of law. The Fourteenth Amendment's promise that all persons are guaranteed "equal protection of the laws" would prove an important mechanism by which the Supreme Court, in a series of rulings in the twentieth century, would articulate a uniform standard by which many of the rights spelled out in the Bill of Rights would be guaranteed to all citizens in each of the states.

Section 2 of the Fourteenth Amendment had a more specific intent. It effectively repealed the three-fifths compromise by which slaves were counted as three-fifths of a person in the apportionment of representation and taxation, and stipulates that any state that attempts to deny the right to vote to any male United States citizen over the age of twenty-one will have its representation in Congress and the electoral college reduced proportionally to the number of citizens so disenfranchised. This part of Section 2 was clearly intended by the members of Congress who drafted it as a means of protecting the newly freed slaves' right to vote. It is notable that the only exception to this protection of the right to vote is in the case of individuals who have partic.i.p.ated "in rebellion, or other crime." This exception not only applied to convicted criminals (who are still denied the right to vote in most states) but also to large numbers of Americans who had partic.i.p.ated in the Southern "rebellion" during the Civil War.

Section 3 of the amendment explicitly excluded former Southern rebels from serving in any federal or state office until Congress, by a two-thirds vote, removed that prohibition. This const.i.tutional device effectively turned over control of the "reconstruction" of the former secessionist states to individuals who had remained loyal to the union during the Civil War.

Section 4 of the amendment absolved the federal government of any responsibility for the debts incurred by the Southern states or by the Confederacy during the Civil War.

Finally, Section 5 granted to Congress broad authority to proceed with legislation that would enforce the provisions of the Fourteenth Amendment. In the immediate aftermath of the adoption of the amendment, Congress pa.s.sed seven statutes aimed at guaranteeing civil rights to freed slaves as well as imposing conditions for readmission to the union on the states that had seceded from it. Over the course of the next two decades, many of the provisions of those statutes would be ruled unconst.i.tutional by the Supreme Court, which adopted an increasingly narrow interpretation of the rights granted by the Fourteenth Amendment.

AMENDMENT XV (1870).

SECTION 1.

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 account of race, color, or previous condition of servitude.

SECTION 2.

The Congress shall have the power to enforce this article by appropriate legislation.

While the Fourteenth Amendment punished states that deprived newly freed slaves of the right to vote by reducing their representation in the House of Representatives, the Fifteenth Amendment categorically prohibits the denial of the right to vote on account of race, color, or previous condition of servitude. Notably, the amendment does not mention gender, which, to the dismay of advocates of women's suffrage, meant that although newly freed male slaves were guaranteed a right to vote, women of all races were denied that right. In spite of the adoption of the Fifteenth Amendment, the states of the former Confederacy managed to find ways to continue to drastically curtail the right of African Americans to vote, through the use of poll taxes, literacy tests, and other discriminatory devices. It was not until the pa.s.sage of the Voting Rights Act of 1965 that African Americans have had equal access to the polling place.

AMENDMENT XVI (1913).

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.

Although the original version of the Const.i.tution gave Congress the power to levy direct taxes, such taxation was only to be levied on the states themselves, in direct proportion to their population. Although Congress during the Civil War was able to levy a direct tax on individuals as part of a wartime measure, the Supreme Court, in an 1895 ruling (Pollock v. Farmers Loan and Trust Co.), ruled that taxing the property of individuals was unconst.i.tutional. The Sixteenth Amendment effectively reversed that ruling. It is silent on what the rate of taxation might be (for example, it does not speak to whether all individuals should be taxed at an equal rate or whether the rate of taxation should be progressively higher on higher incomes). Congress, which enacted a federal income tax law in October 1913, just seven months after the pa.s.sage of the Sixteenth Amendment, opted for a modestly progressive tax rate. The rate of taxation imposed on the top taxation bracket has varied from 7 percent in 1913 to a high of 92 percent in 1952-53. The current rate of taxation in the top bracket is 38.6 percent, nearer the low end of that continuum.

AMENDMENT XVII (1913).

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.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Const.i.tution.

When the Const.i.tution was first drafted, the framers believed that the Senate, the upper house, should be the repository of superior wisdom and virtue and, toward that end, stipulated that senators should be elected by the legislatures of each of the states, whose members would presumably be able to make a wiser choice than the people at large. As one of a series of reforms during the Progressive Era, Congress proposed, and the states endorsed, an amendment calling for direct, popular election of senators.

AMENDMENT XVIII (1919).

SECTION 1.

After one year from the ratification of this article 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.

SECTION 2.

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

SECTION 3.

This article shall be inoperative unless it shall have been ratified as an amendment to the Const.i.tution by the legislatures of the several States, as provided in the Const.i.tution, within seven years from the date of the submission hereof to the States by the Congress.

Most of the amendments to the Const.i.tution seek to grant specific rights to the people by placing restraints on the actions of the government. The Eighteenth Amendment is the only amendment that has sought to restrict the rights of the people-in this case the right to manufacture, sell, or transport "intoxicating liquors" within the United States. Interestingly, it does not prevent the consumption of liquor. Though liquor consumption declined markedly during the years when the amendment was in force, it certainly did not cease. Indeed, as people turned to illegal sources for their alcoholic beverages, the operation of the Eighteenth Amendment served to encourage otherwise law-abiding people to break the law and bolster the activities of organized crime.

AMENDMENT XIX (1920).

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 account of s.e.x.

Congress shall have power to enforce this article by appropriate legislation.

The Nineteenth Amendment was the culmination of more than three-quarters of a century of dedicated work by advocates of female suffrage. Although some states had pa.s.sed legislation allowing women the right to vote prior to 1920, that right was not extended to all women until the adoption of the Nineteenth Amendment. Unlike the operation of the Fifteenth Amendment, which was thwarted by states that found ways to continue to deny the vote to African Americans, the amendment granting women the right to vote encountered little resistance in the aftermath of its pa.s.sage.