WOMAN SUFFRAGE PARADE, MAY 6, 1912.
In 1912, the women of New York did not yet enjoy the right to vote, but they surely did have the right to speak, print, petition, assemble, and parade. Over the next five years, they translated these rights into a state constitutional right to vote; and then, in 1920, the Nineteenth Amendment became the supreme law of the land, guaranteeing women the vote in every state and federal election. (Illustration Credit 11.1)
Progressive-era crusaders succeeded in broadening and deepening several major themes of the Reconstruction-era reformers who preceded them. Carrying forward the nationalism of the Reconstruction Amendment trilogy, early-twentieth-century amendments dramatically expanded congressional power. Much as zealous reformers in the mid-1860s had enacted large wealth transfers from slavocrats to freedmen, so a new generation of idealists in the mid-1910s aimed to reduce antirepublican extremes of wealth and want. Reenacting a good bit of the letter and spirit of the Fifteenth Amendment, the Nineteenth Amendment did for women what the older reform had done for black men.
The Sixteenth Amendment marked the third time that the American people rose up to say no to a Supreme Court decision that had favored propertied interests at the expense of other constitutional values. In the 1790s, the Eleventh Amendment overruled Chisholm v. Georgia, which had threatened to give some creditors more than they were legally entitled to under contracts they had made with state governments. In the 1860s, the Fourteenth Amendment likewise repudiated Dred Scott, which had glorified slaveholders’ property rights as the Constitution’s summum bonum. (Section 4 of the Fourteenth, it will be recalled, barred compensation for slave owners who had been stripped of their valuable chattels by emancipation—a bar that would have outraged Chief Justice Taney had he been alive.) As in the eighteenth and nineteenth centuries, so in the twentieth: In 1913, Americans once again declared that the Court had blundered.1
This time, the issue concerned the meaning of the Constitution’s taxation provisions. In an unpersuasive and indeed unprecedented ruling in 1895, a bare majority of a sharply divided Court struck down the progressive federal income-tax law then in place.2 In the Sixteenth Amendment, reformers undid the 1895 decision of Pollock v. Farmers’ Loan & Trust Co. and made clear that Congress could indeed levy a progressive tax on income.
The specific issue in Pollock revolved around one of the Constitution’s murkiest clauses, which provided (in Article I, section 9) that “no Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census.” A companion constitutional clause (in Article I, section 2) likewise provided that “Representatives and direct Taxes shall be apportioned among the several States … according to their respective Numbers.” Pollock held that a tax on rental income was in effect a tax on the underlying land itself, and that such a land tax was a “direct” tax. A tax on dividend income was also a “direct” tax, said the Court. The Court went on to opine that under the Constitution these “direct” taxes had to be calibrated so that the amount collected from each state corresponded to that state’s population as measured by the census.3
For instance, if state A and state B had identical populations, then tax rates would have to be set so that the total rental-dividend intake from each state was identical. If A’s population was wealthier than B’s, the tax rates in A would need to be lowered, or the rates in B raised, until the revenue from the two states evened up. As a practical matter, the state-adjustment approach demanded by the Court would be impossible to implement in any workable income-tax system operating in a union of some four dozen states. In effect, Pollock ruled out all federal income-tax systems that included rental or dividend income—as opposed to, say, taxes on the wage income of day laborers (which were not “direct” taxes under the Court’s approach, and therefore did not require any special adjustments).
Even if the federal tax code could somehow be overhauled to meet the Pollock Court’s demands, basic principles of progressivity would have to be sacrificed: Inhabitants of rich states would be entitled to pay lower rates than comparable inhabitants of poorer states. Though framed as a federalism constraint, Pollock‘s state-adjustment rule doomed any politically feasible progressive tax system, given the notorious facts that most of the superrich at the turn of the century lived in a handful of states and that previous federal income taxes had fetched far more revenue per capita from these states.
As an interpretation of the Constitution, Pollock left much to be desired, as the four dissenters in the case made clear. Justice Harlan’s dissent went so far as to describe the Pollock ruling as “a disaster to the country.” Harlan, who would go on to write another famously prophetic dissent in the Plessy v. Ferguson case the following year, took special pains to condemn the Pollock Court’s obvious over-reading of the words “direct tax”—words that, Harlan reminded his colleagues, had originally been designed largely to shield the Southern master class from heavy capitations—head taxes—on slaves.4
True, the Founding generation had been opaque about the exact location of the boundary line separating direct and indirect taxes. According to Madison’s notes, at one point Philadelphia delegate Rufus King “asked what was the precise meaning of direct taxation? No one answd.”5 But under any one of several plausible tests, a tax on income was an indirect, transactional tax akin to “duties,” “excises,” and “imposts”—all of which were understood at the Founding to be classic “indirect” taxes not subject to the state-by-state accounting rule.6
Pollock also broke sharply with prior Supreme Court precedent. In the Court’s first foray into the intricacies of direct taxation, the Justices in the 1796 case of Hylton v. United States had offered a narrow reading of “direct” taxes—the precise opposite of Pollock’s approach. Hylton had unanimously upheld the government tax in question—again, the opposite of Pollock. The Hylton justices had understood that the general requirement of state-by-state accounting would be unworkable for many types of taxes, and that this pragmatic fact was itself reason to think that the Founders held a highly restricted view of the kind of “direct” tax that would require such accounting. Key passages in Hylton’s seriatim opinions thus suggested that “direct taxes” should sensibly be defined as those levies that as a practical matter lent themselves to state-by-state accounting, census style.7 This piece of early wisdom, too, Pollock disregarded. Finally, the levy that Hylton upheld was a luxury tax on the wealthy—specifically, a tax on the use of carriages. By contrast, it was the very fact that the federal income tax at issue in Pollock had targeted those most able to pay that rankled many of the Pollock Court’s conservative defenders.
Although Hylton was the Court’s first word on the topic of direct taxation, it was not the only precedent on the books in 1895 or even the closest one to the precise issue before the Pollock Court. During the Civil War, Congress had enacted an income tax, which a unanimous Court had upheld in the 1881 case of Springer v. United States.8 Pollock in effect overruled Springer.
In 1913, however, the People in effect overruled Pollock: “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.”
With this amendment, and with several of the Progressive-era amendments that would soon follow, early-twentieth-century Americans reaffirmed two of the main themes of the Reconstruction Amendments—nationalism and equality—and extended these principles to new contexts. All three Reconstruction Amendments had ended with McCulloch-like clauses proclaiming that “Congress shall have power” to enforce the new constitutional order. The Sixteenth Amendment began with the same phrase. So, too, the Nineteenth (Woman Suffrage) Amendment would echo the Reconstruction-enforcement sections verbatim. Though devoid of similarly explicit congressional-empowerment language, the Seventeenth Amendment, which freed senators from their old dependence on state governments, was surely yet another nationalizing provision.
The Sixteenth, Seventeenth, and Nineteenth Amendments also all aimed to make America more equal—the Nineteenth by protecting women’s equal voting rights; the Seventeenth by introducing one-person, one-vote rules within individual state elections for U.S. senators; and the Sixteenth by affirming the legitimacy of a progressive income-tax system that would take more from rich persons and rich states, a tax system that would target not merely wage income of laborers but also rental and dividend income of investors. Nationalism and egalitarianism intertwined in the income-tax context: Any individual state that imposed high taxes on the wealthy risked being underbid by lower rates in neighboring states, but the national government could avoid this sort of bidding war with a uniform federal policy. While the amendment’s text formally addressed only national income taxes, its spirit smiled upon a range of other state and federal taxes—wealth taxes, for example—aimed at the affluent.
Make no mistake, both sides in the national income-tax debate understood that such taxes had always been, and were likely to be, progressive income taxes—in particular, taxes that targeted the rich. Such taxes openly sought to democratize the economy. This, indeed, was the very reason that Pollock’s defenders so disliked these taxes.
Prior to the Civil War, at least seven states had adopted income taxes. High exemptions and graduated rates—the basic features of a progressive tax structure—were commonplace in these states.9 Congress followed this pattern when introducing a federal income tax in the 1860s. For instance, the 1865 federal tax code exempted all persons who made less than $600, taxed income between $600 and $5,000 at 5 percent, and subjected all income above $5,000 to a steeper 10 percent rate. Later federal laws tweaked the specifics but preserved the basic structure, under which more than three-quarters of federal revenue came from the seven wealthiest states: New York (which itself generated more than 30 percent of the total national intake), Massachusetts, Pennsylvania, Ohio, Illinois, New Jersey, and Connecticut. Under the law struck down in Pollock, incomes over $4,000 were taxed at 2 percent; all others were exempt. According to Treasury Department estimates, less than 1 percent of the population had been subject to this levy.10
The 1908 Democratic Party Platform minced no words when it urged “the submission of a constitutional amendment specifically authorizing Congress to levy and collect a tax upon individual and corporate incomes, to the end that wealth may bear its proportionate share of the burdens of the Federal Government.”11 Republican President Theodore Roosevelt had previously endorsed the idea of an income tax, and in 1909, America’s new president, William Howard Taft, likewise gave his blessing.
Though presidents play no formal part in the Article V process, Taft, as the leader of his party, carried great weight (literally and otherwise). Taft also urged Congress to adopt a constitutional amendment rather than a mere statute reinstating an income tax and daring the Court to say no. Though the Court might well uphold such a statute and overrule Pollock, Taft felt that such an act of judicial abasement would weaken a vital branch of government whose independence needed to be nurtured. (A dozen years later, ex-president Taft would be named chief justice, allowing him to preside over the Court that he so admired and that he had sought to shelter, even at some risk to his own political fortunes.) With the backing of both party establishments, the Income Tax Amendment eventually sailed through both houses of Congress early in the Taft Administration and was ratified almost four years later, as Taft was preparing to leave the White House to make way for Democrat Woodrow Wilson, whose party convention in 1912 had ringingly endorsed the then-pending Income Tax Amendment.
In the first income-tax statute enacted after the new amendment was in place, Congress once again opted for a progressive tax structure that exempted a large swath of low- and middle-income persons and taxed the rest at a sloping rate, beginning at 1 percent for an individual making $3,000 and topping out at 7 percent for income over $500,000. The $3,000 minimum threshold effectively limited the tax to the top 1 percent of the economic order.12 In 1916 the Supreme Court unanimously upheld the new tax law, expressly rejecting the notion that the “progressive feature” of the tax somehow rendered it unconstitutional.13 The American People had spoken and—this time, at least—the Court listened.
Proposed in 1912 and ratified the following year, the Seventeenth Amendment provided that United States senators would henceforth be chosen directly by voters rather than by state legislatures. Along with a supermajority of the House, two-thirds of the Senate—a Senate whose members had been chosen under the old constitutional regime—agreed to this change, as did three-quarters of the state legislatures, who thereby reduced their own power. How and why did this happen?
Largely for a reason that by now should begin to look familiar: The electorate demanded change and had the power to make politicians pay attention. In 1789, Congress proposed a bill of rights limiting its own legislative authority largely because Americans had voiced their desire for such a bill in the previous year’s ratification process. Members of the First Congress understood that if they refused to heed the people’s message, they would have to answer for that refusal at the next election. So, too, as national presidential parties began to emerge before and after the election of 1800, state legislatures generally found themselves obliged to yield up to their constituents the right to choose presidential electors. Once popular election of electors became relatively common in the states, holdout legislatures found it increasingly difficult to deny their constituents the power that voters in sister states were already wielding. Thus, although nothing in the original Constitution or the 1804 Presidential Selection Amendment formally required direct popular election of each state’s presidential electors, a strong tradition to that effect had emerged by 1830.
Democratization of the Senate selection process took longer but followed a roughly parallel path. In brief, individual states began experimenting with a variety of methods that gave voters a more direct say in senatorial elections; and once these practices began to take root and spread from state to state, voters in holdout states began to insist that they, too, deserved the right to pick United States senators directly.
One of the first major innovations in Senate-selection practice occurred in the late 1850s in Illinois. According to Don E. Fehrenbacher, the 1858 Senate race between Lincoln and Douglas “had no precedent in American politics.” Lincoln’s earlier bid for the Senate, in 1854, had exemplified the old way of proceeding. In that year, Lincoln “had waited until after the general election in November to announce his candidacy, and then he had conducted a quiet letter-writing campaign among the legislators, with whom the choice rested.” But in 1858, the fledgling Republican Party held a state convention in June, nearly five months before the election. At this convention, Republicans unanimously named Lincoln as the party’s “first and only choice … for the United States Senate.” Meanwhile, the Democrats were signaling that they would back incumbent Douglas for reelection. Both men proceeded to make their case directly before the voters, in a campaign that quickly became legendary thanks to its famous debates. The novel, if implicit, message of this way of proceeding was that Illinois’s voters themselves could in effect pick their United States senator. If they wanted Lincoln, they should vote the Republican ticket for state legislature; if Douglas, the Democratic state ticket.14
Yet this makeshift could only effect a crude approximation of direct popular election. For one thing, the Lincoln-Douglas framework made sense only when the U.S. Senate race was the single real issue at stake in a state legislative election. This system required both voters and state legislators to be loyal party men; it left no room for a voter to register a preference for a state legislator of one party and a U.S. senator of the other party. Also, it was vulnerable to all the ordinary quirks of legislative apportionment. In 1858 itself, for instance, Lincoln’s Republicans outpolled Douglas’s Democrats by a popular vote of approximately 50 percent to 48 percent, but Douglas managed to eke out a state legislative majority, thanks to a variety of factors. Not all state districts were equally populous or fairly drawn; turnout rates varied across districts, as did margins of victory; not all state seats were up for reelection in 1858; and so on.15
Three decades later, states began to experiment with direct primary elections for Senate candidates within each party. This model made it likely that each party candidate would be the people’s choice within his own party but failed to guarantee that the legislature would in fact crown the man whom most voters would have preferred in a head-to-head race between the top Democrat and the top Republican—a race that could not easily be accommodated within the primary-election framework. Nevertheless, the Senate-primary system, operational in twenty-eight of the forty-six states in 1910,16 did enhance the democratic character of the federal upper chamber and proved especially significant in the South and other places where one party was dominant and the primary election was thus the main event.
At the turn of the century, Oregon began to experiment with a different approach, which went through several iterations and refinements both in Oregon itself and in copycat states such as Nebraska, Oklahoma, Montana, and Nevada. Under the Oregon Plan, the state at its general election allowed voters to directly express their preferences among the candidates for the United States Senate. In an early version of the plan, individual state lawmakers could, if they chose, officially pledge to support the winner of the voters’ preference-poll. Once this pledge was taken, even a Republican state legislator would be honor-bound to vote for a Democratic senator if the Democrat were to win the preference-poll, and vice versa. In a later version, Oregon voters in 1908 enacted a state initiative “instruct[ing]” the state legislature to ratify the people’s choice.17
By early 1913, more than half of the states had already committed themselves to a form of direct election—either the direct-primary approach in one-party states or some version of the Oregon Plan. Thus, when senators and state legislatures from these states supported the Direct Senate Election Amendment, they were voting to constitutionalize rules that were already largely in place or about to be in place.a Several major reform impulses drove the movement for direct election. As a result of intense partisanship, state-law quorum rules, and clever parliamentary maneuvering, state legislatures had often deadlocked when balloting for the Senate. These deadlocks—nearly fifty between 1891 and 1905—had routinely meant that for months a state had only one senator (and in the case of Delaware during one especially contentious two-year period, no senator) in the federal upper chamber. Meanwhile, the Senate tussles had often distracted state governments from attending to other pressing business. Direct election promised to solve these problems.18
Supporters of direct election also argued that their system would result in cleaner, less corrupt government and would counter the undue effects of large corporations, monopolies, trusts, and other special-interest groups in the Senate election process. The Senate was at risk of becoming—indeed, to critics had already become—a bastion of privilege, a millionaires’ club mocking the republican ideal. Nor was the corruption limited to the senators themselves. It also infected state governments, as big-city bosses and other insiders paid off state lawmakers for their votes in Senate contests.
The Seventeenth Amendment solution was to provide that each senator be elected by “the people” of his state—more precisely, the same voters who chose state legislators and therefore the House of Representatives. Senate vacancies would be filled by special election, as with the House, with the proviso that a state’s governor might make an interim appointment until a special election could be held.
HOW DID THE NEW SYSTEM later unfold? To what extent did it redeem the hopes of its backers? If the reformers’ goal was to slash the number of wealthy senators, the amendment might be thought less than a complete success. The Senate largely remained a millionaires’ club.19 Nor can it be said that the amendment reduced the amount of money required to mount a successful Senate bid. Direct elections cost money—lots of it. Indeed, more money was probably required to prevail among the voters than to wage a successful campaign among a smallish number of state legislators.
Yet perhaps this greater amount of money was later being spent in less corrupt ways—on campaigns aiming to reach ordinary voters, inform them about the issues, and draw them into the political process, in contrast to old-style bribes slipped into the waiting pockets of state-capital bigwigs. As the Founders themselves understood, it is harder to bribe a large group of ad hoc decision-makers—such as ordinary voters—than a small group of standing officials. (Recall that this anticorruption idea inclined many at the Founding to trust jurors more than judges and to structure the electoral college so as to minimize the risk of bribery.) Thus, one of the bigger effects of the Seventeenth Amendment’s reform of the federal legislature was a modest reduction in state governmental corruption. Also, by creating a one-person, one-vote regime within each state, direct election lessened the impact of state malapportionment and gerrymandering long before the Supreme Court began to condemn these practices in the 1960s.
The other major federalism dimension of the Direct Senate Election Amendment was more pronounced. Liberated from all dependence on state governments, modern senators were freer to pursue policies that state officials might not like. In the domain of constitutional rights, directly elected senators were in general more wont to expose and rectify the wrongdoing of state public servants. In other regulatory contexts, the federal government proved more inclined to displace state laws and even impose mandates on state government. Thus, the Seventeenth Amendment fit snugly into a long line of post–Civil War provisions enhancing the authority of the federal government. Over the centuries, We the People of the “United States” have placed increased emphasis on the word “United” and have correspondingly diminished the status of “States.”
The transformation of the Senate also affected bicameralism and the separation of powers, subtly reconfiguring the Senate’s relations with the House, with the presidency, and with the judiciary. As to the latter, the Seventeenth Amendment’s democratization of the Senate, alongside the Twelfth’s democratization of the presidency, perhaps gave the judiciary a greater sense of constitutional uniqueness than it had at the Founding. Under the Philadelphia plan, the indirect election of the Senate and president made it somewhat more likely that these entities would check a directly elected House—or put differently, made the Senate and the president somewhat more like the Supreme Court. But as the Senate and the president moved toward House-style direct election—albeit with distinct electoral cycles and voting bases—only the judiciary continued to stand outside the direct-election system. Yet if an enhanced sense of judicial separateness did in fact result from the Direct Senate Election Amendment, this dynamic manifested itself only gradually. Sitting senators or ex-senators were appointed to the Supreme Court at roughly the same rate in the three decades before and the three decades after the Seventeenth Amendment—one per decade, on average. But in the last fifty years, not a single sitting senator or former senator has been named to America’s highest court.20
Within Congress itself, the direct election of senators enhanced the status of the Senate vis-à-vis the House. In addition to their more select membership and more secure tenure, senators could now claim to be the people’s choice in a way that they could not before 1913. Prior to the amendment, six men who had served in the House but not the Senate—Madison, Polk, Lincoln, Hayes, Garfield, and McKinley—went on to become president. Since then, no (mere) representative has gained the White House.21
Meanwhile, the Seventeenth Amendment probably did enhance the presidential prospects of senators by sharpening their populist electoral skills, public visibility, and perceived electabilty. In the early republic, the Senate was a notable nursery for future presidents. After Washington (who of course as the first president had no opportunity for a prior job under the new Constitution), eleven of the next fourteen presidents had served in the Senate, either as a senator or as the Senate’s presiding officer (i.e., the vice president of the United States) or both. But the Civil War marked the start of a new, middle-republic pattern, in which popularly elected governors tended to outshine legislatively chosen senators as successful presidential candidates. After Grant’s departure, five of the next nine presidents were big-state governors—two Ohioans, two New Yorkers, and a New Jerseyan.22
Then came the Direct Senate Election Amendment. By strengthening the populist credentials of senators, the amendment helped restore members of the upper chamber to their early preeminence (alongside generals and diplomats) as presidential prospects. This change was nicely visible in the two presidential elections that immediately followed the Seventeenth’s enactment. The first, exemplifying the middle-republic model, featured two big-state ex-governors, Woodrow Wilson and Charles Evans Hughes. In the second, in 1920, Ohio’s sitting governor, James Cox, ran against one of that state’s sitting senators, Warren G. Harding. As a member of the Senate class of 1915, Harding was in the very first set of men to reach the Senate the “clean” way—under the new, Seventeenth Amendment regime. Six years later, the presidency was his.
This was a sign of things to come. While before enactment of the amendment only three of the ten most recent presidents had previously served in the Senate (as either a senator or a vice president), after enactment seven of the next ten presidents would be Senate veterans. An even more dramatic shift appears if we focus only on actual senators who were later elected president—a category that describes only one of the ten men most recently elected to the White House before the ratification of the Seventeenth Amendment, but that encompasses five of the next ten elected presidents.23 Similarly, while ex-senators accounted for only two of the ten most immediate pre-amendment vice presidents, they would account for six of the next ten. Interestingly enough, since 1944 every Democratic Party Convention save one has named a current or former senator as its vice-presidential nominee.b 24
While the Sixteenth, Seventeenth, and Nineteenth Amendments aimed to change the face of America’s economy and its polity, the Eighteenth, which ushered in the Prohibition era, aimed to transform America’s social fabric. It failed, and less than fifteen years after its enactment it was explicitly repealed by yet another amendment, the Twenty-first.
The crusade to ban liquor in America won its first major victory in 1851, when Maine enacted a statewide prohibition law.25 Several states followed, but most of these laws, including Maine’s, were quickly repealed. Renewed state campaigns ensued in later decades, and by 1917 prohibition was in place in roughly half the states, although many of these places were not “bone dry.” Some states, for example, allowed the sale of beer and wine and/or the private use (as distinct from the commercial sale) of other spirits.26
The temperance/prohibition movement held special appeal in Western states, where it went hand-in-hand with the emerging woman-suffrage movement.27 Women and children had often been victimized by drunken men; and the saloons where men had gathered were seen as vicious, corrupt dens. Much as Progressives sought to purify Senate elections from the corrupting influences of bosses and corporate insiders; much as they aimed to purify the economy by busting trusts and reducing the power of wealthy special interests; much as they hoped to purify politics by enfranchising the fairer sex; so many reformers aspired to purify American society more generally by destroying saloons and the “wet” big-city political machines that operated with and through them.
World War I gave reformers additional momentum. Since grain and sugar were in short supply, Prohibition could be packaged as a patriotic act as well as a moral policy. Prominent brewers were of German descent, and the war made it easy to stigmatize all things German. (As a rule, Prohibition ran strongest among rural, native-born Americans who looked askance at recent immigrants and urban culture.) Proposed by Congress in late 1917, the Prohibition Amendment was ratified in early 1919, and by its own terms went into effect “one year [after] ratification.” By mid-1919, forty-five of the forty-eight states had said yes to this amendment; and in 1922, New Jersey belatedly did the same, making Rhode Island and Connecticut the sole holdouts.28
But in early 1933, the House and Senate—which had voted for the Eighteenth Amendment by overwhelming margins only a decade and a half earlier—voted by equally overwhelming margins to repeal it via the Twenty-first Amendment. By the end of the year, thirty-seven states had agreed.29 How and why did this constitutional about-face occur?
In part, because Prohibition’s repeal involved a different cast of characters. State and congressional apportionment rules in the 1910s had tended to favor rural and heavily native-born regions, but by the early 1930s, new electoral maps began to reflect America’s increasingly urban and immigrant population. Yet malapportionment lived on in many states, prompting Anti-Prohibitionists to sidestep state legislatures altogether in the ratification process. Instead, state conventions were assembled to vote on the new amendment—a ratification option permitted by Article V but never before invoked by Congress. In most states, convention delegates were selected in statewide at-large elections—a process that detoured around the apportionment thicket.30
More significantly, many Americans who had initially supported Prohibition later came to believe that it was a mistake—a failed experiment in an era that celebrated scientific experimentation. Drinking remained common but had simply been driven underground. The old saloon had given way to the new speakeasy (where women as well as men were now welcome). Organized crime had moved into the liquor business. Big-city corruption had actually seemed to increase, as had murder rates, gangsterism, and related evils associated with criminalization itself. Data suggested that rates of illegal drinking were also rising, not falling, as time went on. Rich and powerful groups managed to get around the law, as did clever entrepreneurs. One type of grape juice, for instance, was sold with a “warning” label stating that U.S. Department of Agriculture tests indicated that if the juice were allowed to age for sixty days, it would ripen into wine with an alcoholic content of 12 percent.31 With the onset of the Depression in 1929, critics increasingly argued that Prohibition placed a drag on the economy, costing thousands of legitimate jobs and closing off an important source of tax revenue. In 1932, the Democratic Party Platform openly called for repeal of the Prohibition Amendment, while the Republican Party Platform proclaimed more equivocally that the American people should revisit the issue. When the proposed repeal amendment reached the floor of Congress, more than a dozen senators who had voted for the Prohibition Amendment now voted to kill it.32
ALTHOUGH ITS ATTEMPT to transform American society fell short, the Prohibition Amendment did usher in a notable procedural innovation. Section 3 of the amendment provided that the amendment itself would be “inoperative” unless ratified within seven years. No previous amendment had so provided in its text, although three of the next four amendments (all but the Woman Suffrage Amendment) would follow this lead.
But how, it might be asked, could such an extra requirement be squared with Article V, which imposed no explicit time limit on the ratification process? If the Prohibition Amendment had been ratified in eight years, wouldn’t such ratification have satisfied Article V? If so, wouldn’t the amendment have been “valid to all Intents and Purposes” under Article V, notwithstanding section 3?
Actually, nothing in section 3 said otherwise. Had the amendment been ratified in its eighth year, a good case could indeed be made that it then would have become “valid.” Section 3 merely provided that in such an event, the “valid” amendment would be substantively meaningless—moot, inert, self-negating, of no “operative” significance. Upon ratification, section 3 itself would be as valid as sections 1 and 2; and section 3 told all interpreters simply to disregard the earlier sections if ratification occurred late. In this sense, section 3 was akin to section 1 itself, which had introduced—again for the first time in an amendment—a time-delay rule, under which Prohibition would not go into effect until “one year” after ratification. Section 3 in effect simply changed “one year” to “never” in the event of late ratification.
The broader significance of this seemingly technical point comes into focus when we realize that what section 3 of the Eighteenth did for time, another section of a future amendment could do along other dimensions. For instance, section 3 of a hypothetical Twenty-eighth Amendment proposed in the year 2020 could provide that the amendment would be “inoperative” unless ratified by four-fifths of the states, rather than a mere three-quarters. Or it could provide that the amendment would be “inoperative” unless endorsed by the president; or agreed to by supermajorities within individual state legislatures; or unless approved by a national referendum; or unless ratified by states totaling more than 50 percent of the national population.
Of course, none of these requirements could formally lower the Article V bar or displace it—that would be pure bootstrap. But by raising the formal bar through a provision specifying when an amendment truly becomes “operative,” future section 3 analogues could, as a practical matter, move America toward a more directly democratic system of amendment. If a future section 3 required a national referendum vote of approval before the Twenty-eighth Amendment were to become “operative,” that fact alone might put pressure on some fence-sitting state legislators to say yes. A yes vote by such a legislator would become less a vote on the proposed Twenty-eighth’s substance, and more a vote to “let the people decide.”
Doubtless, the framers of the Prohibition Amendment did not appreciate that they were opening a procedural Pandora’s box with the seemingly innocuous provision of section 3—any more than they foresaw all the unintended substantive consequences of Prohibition itself. But despite their intent, section 3 raises intriguing questions and possibilities for twenty-first-century Americans pondering the permutations of permissible constitutional change. Perhaps the Prohibition Amendment still has something to say after all—even after its formal repeal.
In August 1920, some ten million women who had never been allowed to vote in a general election became the full political equals of men thanks to the ratification of the Nineteenth Amendment. In sheer numbers, this Woman Suffrage Amendment marked the single biggest democratizing event in American history. (Even the most extraordinary feats of the Founding and Reconstruction eras had involved the electoral empowerment and/or enfranchisement of hundreds of thousands, not millions.) Much as the unprecedented power wielded by American voters under the original Constitution broke sharply with traditional English practice—and just as the widespread enfranchisement of blacks during Reconstruction went far beyond what anyone could have forecast before the Civil War—so also woman suffrage in 1920 came as a thunderclap. As late as 1909, women voted equally with men only in four Western states comprising less than 2 percent of the nation’s population. How, then, did women get from the wilderness to the Promised Land in so short a span?
To answer that question, it is useful to begin by pondering how women got from bondage into the wilderness—that is, how they managed to get equal voting rights in four Rocky Mountain states in the late nineteenth century. The rules of territorial expansion and the dynamics of interstate federalism are surely part of the story.
In 1869–70, Wyoming Territory broke new ground by according women equal rights with men to vote and hold office.33 Twenty years later, Wyoming entered the Union as the first woman-suffrage state. Colorado, Utah, and Idaho soon followed suit. An overly simple yet relatively robust explanation for these developments is that women were an especially rare and precious resource in the West. Under the laws of supply and demand, where women were exceptionally scarce, men had to work that much harder to attract and keep them. By letting women vote with their hands, perhaps Western men hoped that women would vote with their feet—and head West. Much as the Founding Fathers had structured a Constitution whose promises of freedom and democracy sought to pull skilled European immigrants across the ocean, so their pioneer grandsons in the West evidently aimed to draw American women through the plains and over the mountains.34
Data from the 1890 census provide some support for this admittedly crude theory. For every hundred native-born Wyoming males, there were only fifty-eight native-born females. No other state had so pronounced a gender imbalance. Colorado and Idaho were the fifth and sixth most imbalanced states overall in 1890. The other early woman-suffrage state, Utah, had a somewhat higher percentage of women (thanks to its early experience with polygamy), but even Utah had only eighty-eight native-born females for every hundred native-born males, ranking it eleventh among the forty-five states in the mid-1890s. Also, the second, third, fourth, and seventh most imbalanced states—Montana, Washington, Nevada, and Oregon—would all embrace woman suffrage in the early 1910s, several years ahead of most sister states. In all these places, men voting to extend the suffrage to women had little reason to fear that males might anytime soon be outvoted en masse by females.35
Contemporaneous comparative data from across the oceans are also suggestive. In 1893, New Zealand became the first nation in the world to give women the vote—though until 1919 it withheld from them the right to serve in Parliament. From one perspective, New Zealand’s niche within the British Empire was not altogether different from Wyoming’s within the American continent: a remote outpost eager to attract new settlers, especially women. At the turn of the century, New Zealand males outnumbered females by a ratio of nine to eight. Among certain communities of New Zealand immigrants from the European continent, the gender imbalance exceeded two to one. Neighboring Australia gave women the vote in national elections in 1902, when there were fewer than ninety nonindigenous females for every hundred nonindigenous males. Before and after Australia’s continental enfranchisement, each of the six states that united to form the nation in 1901 followed its own suffrage rules for elections to local parliaments. The least densely populated and most gender-imbalanced region—Western Australia, where men outnumbered women more than three to two—was the second-fastest to give women the vote, doing so in 1899, nearly a full decade before the most populous and balanced area, Victoria, finally became the last state to embrace woman suffrage.36
Above and beyond any individualistic desire to woo women that may have motivated the men of Wyoming and other Western regions, federal territorial policy provided a modest if unintended spur to woman suffrage. In general, Congress in the nineteenth century waited for each territory to achieve a certain critical population mass before admitting that territory to statehood. Although Congress followed no single formula applicable to all places and all times, each Western territory understood that rapid population growth would enhance its prospects for early statehood. Every new woman in the West would not only bring to a territory her own person but might also help produce future growth through childbearing. And if Congress ever decided to focus not on a given territory’s total number of inhabitants but rather on the size of its voting base, then woman suffrage would almost double the key number.
In its early years, the story of woman suffrage was in effect the opposite of the initial black-suffrage experience. In 1866–68, Northern states had imposed black suffrage on the South while largely declining to embrace it for themselves, partly because these states wanted to discourage Southern blacks from coming north. But at almost the very moment that Northern whites were seeking to discourage a large influx of Southern blacks, Western men were seeking to encourage a large influx of Eastern women.37
Although the stories of black and woman suffrage thus diverged in their early chapters, they later converged—much as the very language of the Nineteenth Amendment obviously echoed the Fifteenth, simply substituting “sex” for “race” as an impermissible basis for future state or federal disenfranchisement. In the Fifteenth Amendment saga, once large numbers of blacks could vote in a large number of states, the stage was set for universalization of the equal-suffrage principle. So, too, the Nineteenth Amendment finally became a reality only after a substantial number of states had embraced woman suffrage. In the case of both blacks and women, white male lawmakers for whom they had never voted ultimately proved somewhat more eager to enfranchise them than did their fellow voters.
As early as 1878, Elizabeth Cady Stanton and other leading women began appearing before the United States Senate to speak in support of a proposed constitutional amendment that would do for sex what the Fifteenth Amendment had done for race. Introduced by a male senator, California’s A. A. Sargent, the proposed amendment’s words had in fact been drafted by a woman, the crusading suffragist Susan B. Anthony, in collaboration with Stanton.38 In 1920, this amendment would eventually prevail in the exact form in which Anthony had initially drafted it, but only after Anthony’s acolytes had transformed the landscape of state practice.
Between 1896 (when Utah and Idaho became the third and fourth woman-suffrage states) and 1909, no new states gave women the vote in general elections. Yet even in this period of seeming quiescence, powerful subterranean forces were at work. A few additional states joined an already substantial list of others willing to let women vote in school board elections and/or other municipal matters. More important, merely by voting on a routine basis in the Rocky Mountain West, women pioneers were proving by their daily example that equal suffrage was an eminently sensible and thoroughly American way of life suitable for adoption in sister states.39
Eventually, suffragists—inspired by early crusaders like Anthony, Stanton, and Lucy Stone, and by the more quiet examples of thousands of ordinary Rocky Mountain women—succeeded in spreading woman suffrage to neighboring Western states. From this broad and expanding base the movement began to successfully colonize the East. In effect, Western egalitarians aimed to even up the continental balance of trade: The East had sent bodies out West, but the idea of woman suffrage would migrate in the other direction—reprising the American Revolution itself, in which colonial children had sought to teach Mother England the true meaning of liberty. Seen from a different angle, suffragists hoped to do for horizontal federalism what the Founders had done for vertical federalism: Just as the Philadelphia Constitution had provided a model for state emulation, so Western states might lead the way for the rest.
The special challenge confronting suffragists in this colonizing phase was that in each and every non-suffrage state, voteless females somehow had to persuade male voters and/or male lawmakers to do the right thing and share the vote. The ultimate success of the indefatigable suffragists ironically proved that the old saw—that men would virtually represent the interests of women—contained at least a grain of truth. For had all men been implacably indifferent to the voices of women, suffrage would never have happened. Of course, if virtual representation was a half-truth, it was also a half-lie. The very fact that so many women were so urgently and ceaselessly demanding the vote—waging, in the years prior to 1920, a total of fifty-six full-blown state-referendum campaigns, not to mention countless lobbying efforts before state legislatures, Congress, and national party conventions40—was itself evidence to men of good faith that these women did not believe that virtual representation was an adequate substitute for actual representation.
From 1910 through 1914, the pace of reform quickened dramatically, as seven additional states—six in the West, and Kansas in the Midwest—gave women full suffrage rights. Meanwhile, other democratic reforms were bubbling to the top of the political agenda and capturing the national imagination. At the state level, provisions empowering voters to participate in initiatives, referenda, recalls, and direct primaries were sweeping the country.41 At the federal level, the Direct Senate Election Amendment became law in 1913, less than a year after being proposed by Congress. Corruption was out, and good government was in—and women were widely associated with the latter. Also, the Progressive era placed strong emphasis on education and literacy, and in many places women had higher literacy rates than men.
The pace of change further accelerated when various Midwestern and Eastern state legislatures began allowing women to vote for president even where women could not vote for congressmen or state legislators. By the end of 1919, a dozen states fell into the presidential-suffrage-only category, and two more allowed women to vote generally in primary elections, including presidential primaries.42 These legal changes typically did not require amendments of state constitutions or direct appeals to the voters. Presidential suffrage thus offered a handy hedge for many a state lawmaker who hesitated to get too far ahead of his (currently all-male) voting base but who also was beginning to see that one day—soon—women would be voting even in state races.
Meanwhile, more states—including, for the first time, Eastern and Midwestern heavyweights such as New York (in 1917) and Michigan (in 1918)—were clambering aboard the full-suffrage bandwagon. By the end of 1918, women had won full suffrage rights in a grand total of fifteen states. Because federal lawmakers in all these places would now need to woo female as well as male voters, suffragists could look forward to strong support in Congress from this bloc. Eventually, congressmen from full-suffrage states would favor the Nineteenth Amendment by a combined vote of 116 to 6, adding extra heft to the House support and providing the decisive margin of victory in the Senate.43
True, in some places in the mid-1910s, woman suffrage went down to defeat at the hands of all-male electorates. For example, in 1912, male voters in Ohio, Wisconsin, and Michigan all said no, and in 1915, suffragists lost in Massachusetts, Pennsylvania, New Jersey, and New York. But by this point, savvy politicians were beginning to appreciate the mathematical logic of what historian Alexander Keyssar has aptly labeled the suffrage “endgame.”44 Once women got the vote in a given state, there would be no going back, for women themselves would never consent to their own political suicide. Unlike, say, Southern blacks, women would likely always have enough votes to keep the ballot after they first got it. Conversely, whenever suffragists failed to win the vote in a given state, they would be free to raise the issue again and again and again: Tomorrow would always be another day, and democracy’s ratchet would inexorably do its work. Thus, in 1917, New York women won what they had failed to win in 1915; and in 1918 suffragists prevailed in Michigan after recent defeats in 1912 and 1913.
Another aspect of the endgame: If and when women did get the vote, woe unto the diehard anti-suffrage politician who had held out until the bitter end! Each state legislator or congressman from a non-suffrage state had to heed not just the men who had elected him, but also the men and women who could refuse to reelect him once the franchise was extended. (After ratification of the Direct Senate Election Amendment, every U.S. senator had to focus on the statewide voters rather than a tiny clump of political chums in the state capital.) The experience in Ohio, where male voters had refused to enfranchise women in 1912 and again in 1914, nicely illustrated the underlying electoral math. Senator Warren Harding voted for the Woman Suffrage Amendment and went on to capture the White House in 1920. Conversely, Senator Atlee Pomerene opposed the amendment and was voted out of office in 1922.45
By the end of 1919, no serious presidential candidate could afford to be strongly anti-suffrage, since such a stance might well doom his prospects in the twenty-nine states that already embraced either full suffrage or some version of presidential suffrage. To win the White House without several of these states would be the political equivalent of filling an inside straight. Thus even a senator from a non-suffrage state had to think twice about opposing woman suffrage if he harbored any long-term presidential aspirations.
America’s decision to enter World War I added still further momentum to the movement. In a military crusade being publicly justified to Americans as a war to “make the world safe for democracy,” the claims of those Americans excluded from full democratic rights took on special urgency. Because America claimed to be fighting for certain ideals, it became especially important to live up to them. All across Europe, women were winning the vote in countries such as Norway, Denmark, Holland, Sweden, and even Austria and Germany. Surely, suffragists argued, the United States should not lag behind any of these places. Also, women on the home front were making vital contributions to the general war effort, economically and socially, even if they did not bear arms on the battlefield itself. In a word, America’s women were loyal—as America’s blacks had been in the 1860s—and wars generally serve to remind nations of the value of loyalty. Widespread nativist anxiety about German aliens in America, and even about naturalized citizens from Central Europe, also fueled the suffrage crusade, given that a disproportionate percentage of women across the country were American-born.
Wars generally increase executive power, and World War I was no exception. In September 1918, President Woodrow Wilson dramatized his support for a national woman-suffrage amendment by appearing in person before the Senate to plead for constitutional reform. Reminding his audience that women were “partners … in this war,” Wilson proclaimed the amendment a “vitally necessary war measure” that would capture the imagination of “the women of the world” and enhance America’s claim to global moral leadership in the postwar era. Several months after this flamboyant presidential intervention, Congress formally proposed the Woman Suffrage Amendment. The endgame had entered its final stage.46
The scene then shifted back to the several states. In Congress, suffrage opponents had understandably but unsuccessfully urged that the amendment proposal should be sent for ratification not to the forty-eight regular state legislatures, but rather to ad hoc state conventions, as permitted by Article V. State ratifying conventions would have been apt to approximate state referenda. Single-shot convention delegates would have had less reason than regular legislators to worry about the future political rewards or punishments that women could mete out once suffrage was won. Supporters of the amendment thus resisted the bait offered up by opponents; women’s odds were better with state legislatures, even though this traditional ratification track would generally require the amendment to win bicamerally in every state.
In the final stage of the struggle for woman suffrage, the only substantial opposition to the Susan B. Anthony Amendment (as it was generally called) came from the South. This was the sole region that had yet to jump aboard the accelerating full-suffrage bandwagon. Also, Southerners who by the turn of the century had effectively nullified the Black Suffrage Amendment in their region had little sympathy for a Woman Suffrage Amendment written in parallel language and reaffirming the root principles of national voting rights and national enforcement power. As South Carolina’s Senator Ellison D. Smith put the point in 1919, “Here is exactly the identical same amendment applied to the other half of the Negro race. The southern man who votes for the Susan B. Anthony Amendment votes to ratify the Fifteenth Amendment.”47 In late August 1920, Tennessee became the key thirty-sixth state needed for ratification, but only the third of eleven ex-Confederate states to say yes to the Anthony Amendment.
READ NARROWLY, THE NINETEENTH AMENDMENT guaranteed women’s equal right to vote in ordinary local, state, and federal elections, both for candidates (mayors, governors, senators, et cetera) and on ballot issues (in initiatives, referenda, bond measures, and so on). Yet fairly read, the Anthony Amendment swept even further, promising that women would bear equal rights and responsibilities in all political domains, including, for example, an equal right to stand for election and to sit on juries. Though the Supreme Court has never quite articulated the principle of the Anthony Amendment in this way, much of the Court’s current case law does indeed approximate this principle in its results.48
Consider, for example, the right of women to serve on juries equally with men—a right that today’s Court squarely recognizes even though its relevant opinions typically fail to highlight the Anthony Amendment. This failure is puzzling. After all, the words of the amendment—words that Progressive-era Americans understood to have been drafted by Susan B. Anthony herself in the 1870s—guaranteed women’s right “to vote” in all venues. If these words applied when citizens voted for mayors or in referenda, why didn’t they apply when citizens voted in jury boxes? Also, the Woman Suffrage Amendment was plainly pegged to the Black Suffrage Amendment. A landmark congressional statute enacted in 1875—a statute that was on the books both in 1878 when the Anthony Amendment first reached Congress and in 1920 when the Amendment finally prevailed—seemed to say that the principles of the Black Suffrage Amendment applied to jury service as well.49 If this was (and indeed remains) true of the Black Suffrage Amendment, why not of the Woman Suffrage Amendment? Just as Susan B. Anthony herself had condemned all-male electorates, so she had famously rejected all-male juries—in a notorious early-1870s episode that The New York Times briefly recalled for its readers on the very day that it reported Congress’s enactment of what the Times referred to as “the Susan Anthony amendment.”50
Beyond these basic points from the Anthony Amendment’s text and history, we should note that most states in the early twentieth century provided that jurors should be drawn from the pool of eligible voters. Even if the Anthony Amendment did not by itself make women equal jurors, didn’t it do so in tandem with state laws and practices linking jury service to suffrage rules? Many state supreme courts and state legislatures in the Progressive era construed the Nineteenth Amendment and/or its state constitutional counterparts to have precisely this effect, though other states failed to see the light.51 More broadly, the amendment’s implicit logic undercut many of the old justifications for keeping women out of the halls of power. For example, any argument that women could be kept off juries because they lacked sufficient capacity to make important decisions would seem to be refuted by the Anthony Amendment itself: Since the amendment empowered women to vote as equals for constitutional conventions and for presidents, it plainly presupposed that women did indeed have the right stuff to be equal partners in all serious matters of governance.52
To see the sweep of the Anthony Amendment from one final angle, let’s consider a simple question: Did women have an equal right to run for president? Suppose, for example, that a state legislature in 1922 passed a law disqualifying all female candidates for president and specifying that any vote for a woman in that state would be legally invalid. Would such a law have been constitutional? Surely most American citizens and judges today would think not.
But where, exactly, did the Constitution say that a woman had a right to run? In what clause, precisely, did the document limit gendered state laws regulating presidential elections? If we look to the original Constitution of 1788, it is hard to see where such a right or a limit existed in word or deed. After all, the text consistently referred to the president with the words “he” and “his”—never “she” or “her.” Anti-Federalists and Federalists debated at length whether American presidents would come to resemble English kings but said nary a word about queens. The original Constitution also seemed to provide state legislatures virtual carte blanche in regulating how presidential electors would be chosen. And of course, “the People” doing the ordaining in the Founding era were men.
Nor would the Reconstruction Amendments as written and originally understood provide much help to our hypothetical female candidate. The Fourteenth Amendment’s text guaranteed only civil rights in emphatic contradistinction to political rights like the right to vote or the right to run. As for the Thirteenth Amendment, ineligibility to be president would hardly seem the equivalent of slavery. And the Fifteenth Amendment forbade only racial discriminations.
But just as it would be a violation of the spirit of the Fifteenth Amendment to prevent blacks from seeking office, so, too, with the Nineteenth Amendment and women. As the Reconstruction Congress itself had illustrated in highly visible decisions made prior to the ratification of the Fifteenth Amendment,53 the right of blacks to vote included their right to vote for blacks. The right of blacks to vote also implied their right to be voted for. Similar logic applied to the companion Woman Suffrage Amendment.54 To read the Constitution any more narrowly than this would fail to do justice to an amendment that in the public mind bore the name of Susan B. Anthony and that was enacted thanks not only to ordinary voters, but also to elected officials working alongside (and at times beyond) them.
Much as the Seventeenth and Nineteenth Amendments had aimed to democratize Senate elections and the general voting base, so the Twentieth Amendment aimed to democratize the political calendar. Though this rather technical amendment clipping the wings of electoral lame ducks can hardly be placed on the same plane as the enfranchisement of ten million women, the amendment did succeed in improving American-style popular sovereignty.
Proposed in March 1932 and ratified in early 1933, the Twentieth aimed to reduce the power of lame-duck politicians—public servants who had been repudiated by the voters at the polls but who had yet to be replaced by their spring-chicken successors. Tackling the problem of a lame-duck president, section 1 moved up Inauguration Day from the old March 4 to a new date, January 20. Current events gave the issue special poignancy. When Congress proposed the amendment, everyone knew that President Herbert Hoover was unlikely to be reelected in November. Yet everyone also understood that the soon-to-be-lame-duck president would remain in power for four months after being repudiated, with no mandate (and perhaps little inclination) to do anything, despite the widespread view that immediate action was needed to pull the country out of its Depression.
The ratification track record of the Lame Duck Amendment reflected the country’s mounting frustration once the voters did indeed say no to Hoover and yes to Roosevelt. In January 1933 alone, twenty-eight states ratified the reform amendment, and before long every single one of America’s forty-eight states had said yes to the new calendar. Although none of this hastened FDR’s inauguration—under a time-delay rule, à la Prohibition, the new political calendar would not become operative until the following electoral cycle—the amendment’s prompt ratification did mean that future generations would not have to wait as Depression-era Americans had been made to.c By comparison to established English parliamentary practice, in which new governments typically took power very shortly after elections, even the new presidential starting date of January 20 involved an awkwardly long period of political limbo. But under the original Constitution as revised by the 1804 Presidential Selection Amendment, the November election would not formally decide the presidency. Rather, the Constitution provided for several postelection proceedings—the meeting of the electors, the counting of their votes in Congress, and congressional balloting in the event that no candidate had a clear electoral-vote majority. To accommodate all this, section 1 preserved a considerable window between Election Day and Inauguration Day.d Sections 1 and 2 of the amendment also tackled the problem of the congressional calendar. Henceforth biannual congressional terms would begin on January 3, not March 4. And instead of presumptively meeting every December, as the Philadelphia Constitution had provided, Congress would presumptively convene in January. In practice, this meant that members elected in November would come into power only two months later—a marked contrast to the older practice under which the first meeting of Congress was presumptively held in December of the year following the election, a full thirteen months after the voters had spoken. The new January 3 start date also meant that future lame-duck congressional sessions would be nonexistent or very short indeed—for the new Congress would take power right after New Year’s Day.
By providing a start date for Congress three weeks before Presidential Inauguration Day, the Twentieth Amendment would also enable any electoral-college misfires to be handled by the incoming Congress—as had not happened, for example, in the elections of 1800–01, 1824–25, and 1876–77, when lame-duck Congresses had decided the identity of the president. In these previous elections, had congressional lame ducks not acted, no one could have, for the new Congress had no right to convene before Inauguration Day (and, indeed, was not ordinarily due to assemble until many months after Inauguration). By staggering the starting dates for the legislature and the executive, the Lame Duck Amendment aimed to ensure (though it oddly failed to state explicitly) that all future presidential-election decisions would be made by congressmen—and congresswomen!—with fresh electoral mandates.55
Other sections of the amendment tidied up a variety of technical issues of presidential selection and succession—for example, by clarifying that in the event of the death of a president elect, the incoming vice president elect would become president on Inauguration Day.56 Details aside, the basic thrust of the Twentieth Amendment as a whole was to render the constitutional calendar more republican by bringing the legislative and executive branches into closer temporal alignment with the most recent expression of the people’s wisdom on Election Day.
YET EVEN AFTER THESE REFORMS—and after the more sweeping changes introduced by other Progressive Amendments—American democracy remained visibly imperfect. If the Sixteenth Amendment had authorized federal progressive income taxes on the rich, it had done nothing to stop regressive and suffrage-limiting state poll taxes on the poor. Even as the Seventeenth Amendment had democratized Senate elections within individual states, it had left the District of Columbia—a non-state—wholly unrepresented in America’s basic republican system. Although the Nineteenth Amendment had extended the vote to millions of loyal women, it had overlooked millions of loyal young adults who were also important partners in America’s wars. And while Congress in the early twentieth century conferred citizenship on all Indians in reservations, thereby filling a gap left open by the Fourteenth Amendment,57 the promises of the Reconstruction Amendments generally remained unfulfilled for most black Americans.e In short, the American People still had much to do.
a Nevertheless, Southern legislatures were notably slower to jump aboard the constitutional bandwagon, given that the amendment envisioned a large federal role over the time, place, and manner of Senate elections. Only four of the thirty-six necessary ratifications came from the ex-Confederacy. (Louisiana added her superfluous yes a year later.) For more background on the states’-rights and race issues lurking beneath the amendment’s surface, see Alan P. Grimes, Democracy and the Amendments to the Constitution (1978; reprint, 1987), 79–82.
b Direct Senate election also indirectly affected the relationship between the upper legislative chamber and the executive cabinet. Prior to direct election, it was not uncommon for a sitting senator to resign his post, serve in the cabinet, and then return to the Senate when his cabinet stint had ended. State legislatures often encouraged this career path; while serving in the cabinet, a once-and-future senator could continue to advance the interests of his home state. To induce a sitting senator to resign from the upper chamber (as required by the Article I, section 6 incompatibility clause), state legislatures implicitly promised to hold the retiree’s seat and reelect him to the Senate once his cabinet service was over. Direct election has made this sort of implicit deal all but impossible to strike: Voters en masse are too large, diffuse, and ad hoc to offer the sort of assurance of reelection that state legislatures had been able to provide. Before the enactment of the Seventeenth Amendment, thirteen cabinet officers were once-and-future senators; since then, not a single senator has joined the cabinet and then returned to the Senate at the end of his or her cabinet service. For more analysis, see Vikram David Amar, “Indirect Effects of Direct Election: A Structural Examination of the Seventeenth Amendment,” Vanderbilt LR 49 (1996): 1347, 1355–60.
c The Twentieth Amendment’s time-delay rule for its own implementation presents a puzzle: Why would an amendment designed to reduce time delays between popular elections and government policy-making itself introduce a special time-delay rule for its own operation? At least two interrelated answers would seem to be at work. First, constitutional rules often operate on a different, more extended temporal plane than ordinary governmental policy-making. In some situations, a time-delay rule in a proposed constitutional amendment may create a desirable veil of ignorance, forcing amenders to focus on long-run principle rather than short-run advantage. (For an example, see Chapter 8, this page.) Second and related, without a time delay certain changes in the constitutional order might be thought to violate vested rights or strong expectations worthy of respect.
d In 1916, Woodrow Wilson had toyed with another possible way to shorten this window. Were Wilson, the incumbent, to lose to Republican challenger Charles Evans Hughes, Wilson could choose to appoint Hughes secretary of state—a post that under the presidential-succession law then in effect would place Hughes next in line after the vice president. If Wilson and his vice president, Thomas Marshall, were then to resign, Hughes could take over long before March 4. As things turned out, Wilson won and nothing became of this musing. In 1920–21, Wilson took no steps to hasten Harding’s ascension. See generally Edward S. Corwin, The President: Office and Powers, 1787–1957 (4th rev. ed. 1957), 358–59.
e For example, by 1910, “only 15 percent of adult black men in Virginia were registered to vote; in Mississippi and Alabama the figure stood at less than 2 percent.” Mary J. Farmer and Donald Nieman, “Race, Class, Gender, and the Unintended Consequences of the Fifteenth Amendment,” in David E. Kyvig, ed., Unintended Consequences of Constitutional Amendment (2000), 141, 148.