Constitution Day Special: Our Favorite Unheralded Amendments
Above the Law's favorite Amendments that nobody ever talks about.
Today is Constitution Day. Today we celebrate a group of racist, white, male landowners finalizing a brilliant document that could be changed to overcome their parochial limitations.
I’m not the kind of guy to chestily proclaim that America is the greatest country on Earth, but I’ll put our organizing legal document up there with anyone’s. I’ve read a lot of constitutions (3L Comparative Constitutional Law finally paying off), and I’m always impressed by our document’s ability to allow for so many different and fractious opinions on how the country should operate. Whether or not you believe in a “living” constitution in the Brandies sense of the word, that our constitution is still alive is damn impressive. As written, our president and our presidential front-runner couldn’t even vote. Half the country went to WAR to get out of the constitution, and when they lost, we didn’t even say, “Okay, let’s start over so this never happens again.” We fixed the constitution after the Civil War, but we didn’t bother to fix the South. Amazingballs.
One of the main strengths of our constitution lies in its amendment process. The thing can be changed, quite easily actually, so long as everybody agrees. And it turns out that we don’t agree very much.
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To honor this document, some of us at Above the Law wanted to look at the surprising instances since 1787 when we all agreed. The Bill of Rights doesn’t count. And the Civil War amendments don’t count because, well, we didn’t really all “agree” so much as half of us got their asses kicked and had to eat it. So let’s go with any amendment after the first 15. You could make a compelling case that American political thought can be explained by which of those first 15 Amendments are the most important to you or to your life (and if you read that and thought “the 8th,” I feel so goddamn sorry for you).
But while the latter amendments aren’t likely to show up on a 1L’s list of “amendments I know by number,” they define our modern polity almost as much as the first ten. Let’s talk about them. Let’s talk about our moddable constitution…
Elie’s Ode To The 16th Amendment:
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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.
Let’s be clear, without the federal income tax, Germany would have won one war so huge that it wouldn’t have had to fight another one. Mississippi would be a wasteland and California would have no water.
Okay, those last two examples weren’t the best, but you take my point. The central government needs money to do things. Without federal taxes, America is a third-world economy struggling to fend off military incursions from Canada and Mexico.
But the mere power to tax is not what the 16th Amendment is about. It’s way more awesome than that. Obviously, the federal government found two pennies to rub together before this amendment was ratified in 1913 — tariffs, excise taxes, and other “indirect” taxes. Before the 16th Amendment, it was still legal for the government to tax wages. What the 16th Amendment allowed for was for the direct taxation of how rich people really make their money. After the 16th, the federal government could tax investments. It could tax rents. It could tax the money people make while they were sleeping.
The South was begging for the 16th Amendment. Rich, northern industrialists opposed. Westerners who had their money tied up in the price of gold opposed it. Workaday schlubs were getting taxed already, the 16th Amendment simply forced capitalists to play by the same rules as their laborers.
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The 16th Amendment had no chilling effect on investment (see: the 1920s), provided a social safety net that probably prevented a full-scale, proletarian revolution (see: the 1930s), won us a war (see: the 1940s), helped us transform into a consumer economy (see: 1950s and 60s), and was going smoothly until it became racially divisive in the 1970s. Then, you know, Reagan happened. Somehow this populist, egalitarian fiscal policy was recast as an excessive burden on America’s true heroes: the wealthy capitalists that have opposed the amendment for a century.
Nothing in the constitution limits the power of rich people quite like the 16th Amendment. Even if you think taxes f**k you, understand, the 16th Amendment is the necessary lube.
JoePa Speaks Easy About The 21st Amendment:
This seems as good a time as any to remind everyone how amendments are made:
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That was basically how America got saddled with the 18th Amendment — temperance whackjobs convinced the government to outlaw alcohol. Complain all you want about the state of American politics, but there was actually a time when a lunatic armed with a hatchet could drive government policy. The best modern-day corollary would be turning over campaign finance to Carrot Top. Which, on second thought, might still be an improvement. The inevitable result of handing over the reins of policy to these religious zealots was an orgy of criminal violence and government corruption. Other than inspiring the best Kevin Costner movie, nothing good came of America’s foolhardy attempt to thwart the consumption of alcohol — a fundamental part of human existence since the Neolithic era.
So with all the famous amendments off limits, how can you go wrong selecting the 21st Amendment, which repealed prohibition? It’s not just that I like to drink. Or even that I’m drinking right now. The 21st Amendment is important because it’s a testament to America’s now lost capacity to change course. A mere 16 years passed between the introduction of the 18th Amendment and the ratification of the 21st Amendment. In 16 years, the electorate looked at a policy it implemented, evaluated its impact, and soundly reversed itself. America’s not remotely that self-aware. On taxes, voting rights, or, most appropriately for this Amendment, drugs.
Over 40 years into the so-called War on Drugs, the country suffers many of the same ills brought on by prohibition, now augmented by a hyper-militarized (how else would you fight a “War”?) police force whose “under siege” mentality was put on display in Ferguson. They bring a rock, you bring an AR-15. It’s the Chicago way. It’s time to take a lesson from those who ratified the 21st Amendment and admit that prohibition, at least prohibition backed by police action and incarceration, is only making matters worse.
Until then, pour yourself a double and enjoy the show.
Alex Rich Would Review Docs To Vote Without The 24th Amendment:
Of course the person who writes about the lower class of the legal profession chooses their favorite amendment as the 24th (banning poll taxes in federal elections for those of you too lazy to Google it). Well, at least it’s my favorite when all the other good amendments are off the board — much like picking the top hat as your Monopoly piece after the racecar and dog have been taken.
But in all seriousness it is a pretty clutch amendment. It seems obvious to me that allowing states to levy taxes upon the right to vote leads to the very worst forms of discrimination and tampering with democracy, but hey, what do I know? I also think Citizens United is destroying the fabric of our country. Asking people to pay a tax (sometimes a cumulative tax for prior years that they didn’t vote) in order to vote makes the current effort by conservatives to limit and/or end early voting because they are worried when black people are empowered to actually vote seem like child’s play. It also puts into stark relief how regressive the move to limit early voting really is. If you can’t make people pay for the right to vote, make them take time off of work and otherwise make it as inconvenient as possible in order to vote. For a party obsessed with wearing an American flag on their lapel, they sure don’t like most of the people actually living under that flag. Only the rich ones.
We Weren’t Going To Give Staci A Vote, But Then We Read the 19th Amendment:
Elie here: Staci is unfortunately away today. But before she left, she said something about how allowing the other half of the country to vote was important and stuff.
It’s not entirely clear to me that the Republican Party has gotten the memo. The Republican presidential candidate hasn’t won the women’s vote since George Bush beat Michael Dukakis in 1988. In 2012, the gender gap between President Obama and Mitt Romney was the largest in the history of the Gallup Poll.
The 19th Amendment will be 100 years old in 2020. It’s time to get with the program.