American Government and the Constitution Lecture Nine

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American Government and the Constitution Lectures: 1-2-3-4-5-6-7-8-9-10-11-12

Mastering the Constitution is a bit like learning economics or basic arithmetic: the concepts are simple, but it is easy to make mistakes. It is essential constantly to ask yourself questions to ensure that you really know the correct answers. It is also helpful to double-check your answers by trying to arrive at them based on more than one reason.

Here's a sample question: what is the term limit for a member of the House of Representatives? Well, you should know that the 22nd Amendment created a term limit for a president to be elected at most two times. But it did not create any term limit for members of Congress, so no such limit exists. Alternatively, the same answer could be found by considering what the qualifications are for someone to be a member of the House of Representatives. Article I, section 2, clause 2 states that “No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.” Those qualifications do not impose any term limits, so there are no term limits for members of the House of Representatives.

"Midterm" Elections

The "midterm" elections occur halfway through a presidential term, when the office of president is not on the ballot. This past Tuesday (Nov. 4, 2014) was the "midterm" elections because no presidential candidate was on the ballot. The entire House of Representatives, one third of the Senate, and many state and local offices were on the ballot.

This particular election was six years into the presidency of Barack Obama, and his unpopularity caused many candidates in his political party (the Democratic Party) to lose. Voters know that Democratic candidates will tend to support Obama and vote as he wants them to vote, even though many of the candidates campaigned by saying they are not as liberal as Obama is. Obama himself was not on the ballot, but in the minds of many voters his policies were on the ballot in the names of other members of his same political party. So Democrats did poorly in the elections this week, and Republicans gained control of the U.S. Senate by winning more than 50 out of the 100 Senate seats.

If Republicans had won only 50 out of the 100 U.S. Senate seats, then would the U.S. Senate be in a tie between Republicans and Democrats? As always, the answer to this question is in the Constitution. The Vice President can vote in the U.S. Senate whenever there is a tie, in order to break the tie and allow one side to win. Article I, Section 3, clause 4 states that:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."

Notice how artfully that is written: the Framers did not say that the "Vice President may cast a vote to break a tie," but said that the Vice President "shall have no Vote, unless they be equally divided."

Throughout American history, a Vice President has voted only 224 times in the Senate, in order to break a tie vote and enable one side to win, and the complete list of all the times that a Vice President has voted in the Senate is available on the internet.[1] Many prominent Vice Presidents never voted in the Senate, not even once, because there was never a tie vote there during the Vice President's tenure in office.

In the last half century, the Vice President who voted the most in the U.S. Senate was Dick Cheney, especially in the years 2001 through 2003, when the U.S. Senate was nearly equally split between Republicans and Democrats. During that period a Republican Senator actually switched sides to become an Independent who voted with the Democrats ("caucused" with the Democrats), which shifted overall control of the chamber from Republicans to Democrats until the next election.

At the beginning of a new congressional term after the swearing in of candidates who won in the election, the Senate votes to elect its Majority Leader. That is a "party line" vote (people vote for a fellow member of his own political party), so the political party that has a majority in the Senate will be the party that controls who is chosen as Majority Leader.

At this time (2014), the Vice President is a Democrat (Joe Biden), so if the Senate were equally divided between Republicans and Democrats (including Independents who vote with the Democrats), then the deciding vote would be cast by the Democrat Vice President in favor of a Democrat Majority Leader. It was not enough for the Republican Party to win 50 seats in the Senate in order to gain control; the Republican Party needed to win at least 51 seats to attain control, and it did.

The Office of Vice President

Ever since the ratification of the Constitution, there has been a President. But there has not always been a Vice President. For example, when Harry Truman moved from being Vice President to President after Franklin Delano Roosevelt passed away, the office of Vice President was vacant and remained vacant for nearly 4 years, from 1945 to 1949. On many occasions in history there has also been no Vice President, including:

  • 1812-1813
  • 1814-1817
  • 1832-1833
  • 1841-1845
  • 1850-1853
  • 1853-1857
  • 1865-1869
  • 1875-1877
  • 1885-1889
  • 1899-1901
  • 1901-1905
  • 1912-1913
  • 1923-1925
  • 1945-1949
  • 1963-1965

Most people, lacking knowledge in the Constitution, would never guess that the office of Vice President has been vacant so many times, and for so long in some instances, throughout American history.

The original Constitution did not provide any way to fill a vacancy in the position of Vice President. A special national election is not allowed by the Constitution. It was not until ratification of the 25th Amendment in 1967 that the Constitution provided for a way to fill a vacancy in Vice President. This amendment authorizes the President to nominate a new Vice President, who can take office if he is confirmed by a majority in both the House of Representatives and the Senate. Notice that no vacancies at Vice President have occurred since 1965, and the 25th Amendment has been used since then to appoint a new Vice President.

Too Difficult to Amend?

Many in the media and in universities think that the Constitution is too difficult to amend. It requires a two-thirds vote of both the House and Senate, and then approval by three-quarters of the States, in order to change the Constitution by adding an amendment. That type of "super-majority" is difficult to attain on any issue of importance.

Yet seven amendments were ratified in less than one year: the 12th, 13th, 15th, 17th, 20th, 21st, 26th Amendments. The last of these, the 26th Amendment, was ratified in record time, only 3 months and 8 days. It lowered the voting age to 18 nationwide, thereby granting 18-year-olds the right to vote everywhere in the country. The political argument was that 18-year-olds were being drafted into the military, so they should be able to vote to help decide whether the Nation would go to war.

Proposed Amendments Never Passed by Congress

Here are some proposed amendments to the Constitution that have been introduced in Congress, but were not passed by the required 2/3rds majority in order to be sent to the States for ratification:

  • to prohibit mandatory bussing (for racial desegregation) of public school students (102nd Congress, 1991-1992)
  • to prohibit the desecration of the American flag (102nd Congress, 1991-1992)
  • to deny automatic citizenship ("birthright citizenship") to children who are born in the United States to non-resident parents (103rd Congress, 1993-1994)
  • to change the lifetime appointment of federal judges in order to require their reconfirmation or rejection by the Senate every 12 years (105th Congress, 1997-1998)
  • to allow anyone who has been an American citizen for at least 20 years to be eligible to become president (107th Congress, 2001-2002)
  • to protect the word "God" in the Pledge of Allegiance and the national motto (108th Congress, 2003-2004)
  • to define and limit marriage in all States to be between only one man and one woman (108th Congress, 2003-2004)

There have also been bills introduced into Congress to amend the Constitution to prohibit abortion, but those bills have not passed Congress either.

Slavery and the Constitution

Neither “slave” nor “slavery” is mentioned anywhere in the original Constitution. The Framers wrote about slavery in the original Constitution in a way that avoids ever using the term itself.

Near the end of the Constitutional Convention, delegates Charles Pinckney and Pierce Butler from the pro-slavery State of South Carolina moved to add a provision that would require northern States to return slaves to southern States, rather than grant freedom to the fugitive slaves. This initially sparked opposition by several delegates from northern States, and the proposal was then withdrawn by Delegate Pinckney. But, in an illustration of how unpredictable conventions can be, Charles Pinckney simply reintroduced the same provision the following day, and it passed unanimously. It is known as the “Fugitive Slave Clause,” and was inserted into Article IV as Section 2, clause 3:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Notice the older, British spelling of “labor” as “labour”.

Merely six weeks earlier, under the Articles of Confederation, Congress had passed a similar Fugitive Slave Clause as part of the Northwest Ordinance of 1787, for the “northwest” territories that ultimately became the States of Ohio, Indiana, Illinois, Michigan and Wisconsin. The Northwest Ordinance included its fugitive slave clause as a compromise to the southern slave States, because the Northwest Ordinance banned slavery itself in the northwest territories. So slavery was banned, but fugitive slaves who escaped from their masters by fleeing to the northwest territories were required to be returned to their owners.

Challenges to federalism posed by the fugitive slave issue

As opposition to slavery grew in the northern States during the first half of the 1800s, the issue of fugitive slaves became a big test for federalism. An "Underground Railroad" developed to help slaves escape to freedom from the South into the North and Canada. The "Underground Railroad" was not a real railroad, but a network of people who secretly helped slaves escape to freedom.

Southern slave-owners bitterly opposed the Underground Railroad and how some in the North were helping slaves escape. An estimated 100,000 slaves escaped from the South into the North and Canada, to freedom, using the Underground Railroad, between 1810 and 1850. Even earlier, one slave ran away from George Washington, and in 1786 (only a year before the Constitutional Convention) Washington complained that a "society of Quakers, formed for such purposes" helped the slave escape. But there were Quakers who were slave-traders as well as Quakers opposed to slavery. George Washington's real frustration at Quakers may have been for an entirely different reason: they refused to support the American Revolution, because Quakers were pacifists opposed to all wars, and often Washington fought battles in areas where there were many Quakers who refused to help.

The Underground Railroad used terms common to the railroad industry: places where the fugitive slaves could stay were "stations" and "depots", people who provided money to support the operation were "stockholders," and a person who worked to move fugitives between stations were called the "conductor".

In the decades approaching the onset of the Civil War in 1861, northern States increasingly refused to capture and return fugitive slaves to the South. Since 1793 there had been a Fugitive Slave Act in effect, as passed by Congress, which required the return of slaves to their "owners". In 1850, as part of a compromise, Congress passed another Fugitive Slave Act to make it more effective in shutting down the Underground Railroad and punishing people who helped slaves escape to freedom.[2]

All this put the concept of federalism to a big test. Northern states did not want to return fugitive slaves to the southern slave-owners who demanded the return of their "property". Federal laws, partly for historical reasons, favored the southern states on this issue. And the Supremacy Clause in Article VI meant that federal law trumped State law.

The Chief Justice of the United States (Supreme Court), Roger Taney, was a southerner who viewed slaves as property rather than as American citizens. When the case of Dred Scott v. Sandford (1857) came before the Supreme Court, Chief Justice Taney wrote what is considered to be worst opinion in American history: he held that a slave who had lived for a while in a free State could never be recognized as a free man in a slave State, because black Americans somehow were not really citizens. By a 7-2 vote, the Supreme Court declared the Missouri Compromise to be unconstitutional, and that slaves had to be returned to their "owners". This terrible ruling by the Court can be summed up in three points:

  • the Supreme Court ruled that the slave Dred Scott would not be recognized as a citizen, and therefore he did not even have a right to sue in federal court.
  • Blacks had no rights to be citizens, even in the North.
  • Neither Congress nor a territorial government could ban slavery from a federal territory, because it violated slaveholders' rights to due process of law.

Northern States were furious about this decision, while southern States applauded it. Abraham Lincoln harshly criticized the Supreme Court for this decision. The continuing dispute over slavery was resolved only by the Civil War.

The Reconstruction Amendments

The "Reconstruction Amendments" are the 13th, 14th, and 15th Amendments, which were added to the Constitution as a result of the Civil War. Their common goal was to end slavery completely, and to accept the former slaves as full citizens with the rights and privileges of every other American. The Amendments were designed to force the southern slave States to end slavery permanently and never allow it again. The southern States could not regain their representation in Congress until they ratified the first two Reconstruction Amendments (the 13th and 14th Amendments).

The 13th Amendment expressly prohibits slavery. It became the first provision in the Constitution to use the word "slavery". It was ratified before the end of 1865, which is remarkably quick considering the Civil War did not end until April 9, 1865.

One might wonder why Congress did not simply pass a law prohibiting slavery directly, rather than amending the Constitution. Part of the problem was that the southern slave States were not sending any congressmen to Washington, D.C., after the Civil War began. So the southern slave States would not necessarily recognize a federal law passed in their absence. The southern slave States were required to prohibit slavery in their own State constitutions after the end of the Civil War, but nothing could prevent the States from amending their own constitutions later to remove or alter the ban on slavery. Amending the U.S. Constitution, though difficult, was the only way to ensure a complete end to the use of slavery throughout the entire United States.

The Thirteenth Amendment

The 13th Amendment states that:

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 13th Amendment was the first amendment to expand the power of Congress, by giving it authority to enforce the amendment by passing federal laws. Many future amendments likewise expanded federal power by giving authority to Congress to pass new laws to enforce the new amendments.

While the subsequent 14th Amendment applies only to actions by government (known as "state action"), the 13th Amendment applies to everyone, including private citizens. No one in the United States can enslave someone else, or force someone else to do work. This tends to prevent courts from ordering someone to do a job. Typically courts only order people not to do something, rather than to do something.

Some sought to avoid the draft into the military (when it was mandatory) on the grounds that it violates the 13th Amendment. But courts have ruled against attempts to use the 13th Amendment to block a draft into military service.

Courts are more likely to apply the 13th Amendment in situations where Congress has enacted a law under its Section 2 to prohibit something. If Congress has been silent, then courts are unlikely to apply the 13th Amendment, and it is rarely cited by court cases.

The Fourteenth Amendment

The part of the Constitution that is the subject of the most lawsuits today is the 14th Amendment, which was ratified in 1868 as one of the Reconstruction Amendments added to the Constitution after the Civil War. The 14th Amendment has vague language has been used by courts again and again to invent new constitutional rights, such as abortion and same-sex marriage.

The goal of the 14th Amendment was to guarantee full citizenship to the former slaves. But it is wordy and vague in its language, and thus has been interpreted by federal courts far beyond that original purpose.

The Fourteenth (14th) Amendment, or Amendment XIV, is this:

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 participation 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 Constitution 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 assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation 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.

The Fifteenth Amendment

The last of the Reconstruction Amendments is the 15th Amendment, which guarantees the right to vote without discrimination based on the race of the citizen:

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.

Notice how this Amendment, like the 13th and 14th Amendments before it, expands the power of Congress to pass laws related to the topic of the Amendment.

The goal of the 15th Amendment was to make sure that former slaves would be able to vote without interference by southern States. Previously, slaves could not vote, and southern Democrats did not want the former slaves voting after they obtained their freedom.


For most of our Nation's history (from the late 1700s to the early 1900s), the federal government was supported by money raised from tariffs not from any income tax. (A "tariff" is a tax imposed on a good that is imported from another country. A tariff is like a sales tax that applies only to a good made in a foreign country and sold here.)

The original Constitution did not provide a practical way for the federal government to impose an individual income tax on American citizens and corporations. The Constitution did authorize Congress to impose ("levy") taxes, but the taxes had to be apportioned based on the number of individuals, and not based on how much money they made.

Sixteenth Amendment

As the federal government grew in size and power, it became more expensive to operate. In the late 1800s Congress sought to impose taxes directly on individuals in order to raise revenue for the federal government. But in 1895, a divided U.S. Supreme Court held in the case of Pollock v. Farmers’ Loan & Trust Co. that Congress lacked the power to directly tax the people on their property unless the tax is in proportion to the number of people taxed—i.e., poor people could not be taxed less than rich people. This ruling was based on the Constitution Article I, Sections 2 and 9, making it impractical for Congress to impose any taxes on individuals based on their incomes. Eventually Congress did figure out ways to tax corporations without violating the U.S. Supreme Court rulings that strictly interpreted constitutional limits on taxation.

The 16th Amendment, which was added to the Constitution by ratification of three-quarters of the States in 1913, is this:

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.

At first, the income taxes were tiny burdens, but over time the taxes were increased, and increased, and increased, until by the 1950s the marginal tax rate (the portion of each additional dollar in income that must be paid in taxes) was greater than 90%! That means for every extra dollar earned, more than 90 cents of it was required to be paid to the federal government. The marginal tax rate increases with the amount of income, so that someone making more money pays a higher marginal tax rate on each additional dollar that he earns; poor people did not pay such a high marginal rate. Today the top federal marginal income tax rate is about 40%.


Study for the online midterm exam next week, which will cover the entire course through this lecture.


  2. Fugitive Slave Act of 1850