The Purpose and Powers of the Senate, Part XXIX: “Forming a Better Public Sentiment”

    Having discussed the character of the various amendments to the Constitution that were approved by Congress and ratified prior to that which mandated the popular election of United States Senators, it now remains to explore the nature of all those amendments which have been made to the Constitution since that time. The purpose of such an examination, of course, is to establish whether the ratification of the 17^th Amendment – which, as aforementioned, shifted the power of electing Senators from the state legislatures to the general population – has had any significant effect on the character of those that followed. If any such effect can be detected, it would seem reasonable to conclude that the ratification of the 17^th Amendment has meaningfully altered how the United States Senate functions. And if no such effect is in evidence, it would seem equally sensible to infer that the provisions of the cited amendment have left the Senate largely unchanged. So far, based on a study of the first sixteen amendments, it would appear as though most of the initiatives which gave rise to the same were either of a largely institutional nature – in that they were proposed at the behest of elected officials in response to some development within the political or legal institutions of the United States of America – or contained some admixture of both institutional and popular priorities – in that they were the product of popular agitation as translated through the actions of state legislators and U.S. Senators. So far – near as this writer can determine – all of the aforementioned sixteen amendments would seem to fall into one or the other of these categories, with the 17^th itself sitting quite firmly in the latter. So what, then, of the nine that have followed? Has the ratification of the 17^th Amendment wrought a significant alteration to the kinds of amendments that have followed in its footsteps?  

    These questions lead us, of course, to the provisions and the story of the 18^th Amendment, which was declared ratified by the appropriate number of states on January 16^th, 1919. Not only is this addition to the text of the Constitution noteworthy in being the first to follow the aforementioned 17^th – making it the first amendment produced in part by a Senate whose members were all the product of popular election – but it is also, so far, the only amendment to have subsequently been repealed. The reason for this, of course, has to do with the terms and provisions thereof. The text of the amendment, which is divided into three parts, declares the following:

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all the territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

The third section, from a legal standpoint, would seem to be interesting enough. Never before had an amendment included qualifying text specifying a date beyond which, if the required number of states had not voted to ratify the same, further ratifications would be of no effect. But it was obviously the first section which marked the real significance of the measure at hand. With the ratification of the 18^th Amendment – which, as noted above, occurred in January of 1919 – it thereafter became not just illegal but unconstitutional to manufacture, sell, or transport alcohol “for beverage purposes” within, into, or out of the United States. 

    In order to understand how and why the United States Congress would grant their approval to such a drastic proposal – as well as how and why the various state legislatures would subsequently provide their support – one naturally needs to enter into a discussion of the activities of the American Temperance movement in the 19^th and 20^th centuries and the degree to which the legal probation of alcoholic beverages had become an object of popular agitation in the late 1910s. In its earliest incarnation, as of the late 18^th century, Temperance in the United States mainly constituted a kind of social advocacy campaign whereby concerned individuals – doctors and clergymen, in the main – attempted to persuade their fellow Americans of the physically and spiritually deleterious effects of alcohol consumption. The movement started small, mostly taking the form of local or state-level organizations whose aim was to influence both the habits and laws of their local communities, but by the middle of the 1820s the effort had started to pick up steam. In 1826, the American Temperance Society was formed in Boston, Massachusetts, the stated purpose of which was to become the primary national organization advocating for voluntary abstinence from alcoholic beverages. Within five years, the ATS encompassed over two thousand local chapters and over one hundred and fifty thousand members; within ten years, these figures rose to eight thousand and over one and a quarter million, respectively. At first, the Society’s aim was to promote moderation on an individual level, with each of its members pledging to refrain from consuming alcohol other than beer or wine. In time, however, the more hardline element within the various local chapter came to dominate the national discussion, with wholesale prohibition becoming the ultimate goal of the ATS by the end of the 1830s.

    As far as this overriding objective was concerned, the American Temperance Society and its supporters did enjoy their share of success. The state of Maine in particular proved to be fertile ground for prohibitionist sentiment, evidenced by the passage of the so-called “Fifteen Gallon Law” in 1838 – the terms of which prohibited the sale of spiritous beverages in quantities less than that amount, thereby outlawing small-scale commercial transactions – and then a statewide ban on all alcohol sales in 1851. These victories were quickly replicated in the various other states wherein the ATS held significant sway over the local political culture. Rhode Island passed its own “Maine Law” in 1852, followed by Vermont in 1853, Connecticut in 1854, and Delaware, Massachusetts, Indiana, Michigan, Ohio, New York, Pennsylvania, and New Hampshire, all in 1855. In many cases, these prohibitory laws met with significant challenges on their way to implementation. In Massachusetts, Indiana, Michigan, and Ohio, for example, state courts responded to lawmakers’ initial efforts by declaring the relevant laws to be unconstitutional, forcing the various texts to be rewritten and re-submitted for legislative approval. And in Connecticut and New York, uncooperative governors forced prohibition to become an election issue, though in both cases the result was the elevation of a pro-temperance replacement. Enforcement also turned into something of a perpetual headache, and the ATS still had virtually zero penetration into the socio-political sphere of the American South. But victory, all the same, was victory. By the end of the 1850s, prohibition had established itself as one of the premier domestic policy issues on the contemporary American political stage.

    The Civil War, unsurprisingly, threw this situation into almost complete disarray. Not only did the abolition of slavery – which had alternately competed with and made cause with prohibition for the attention and support of the Northern middle class – come to monopolize the domestic policy agendas of Northern governments and Northern statesmen, but the need to fund the war effort led to the simultaneous repeal of prohibition laws and the imposition of excise taxes on liquor sales at both the state and federal levels. By the conflict’s end in 1865, virtually every prewar prohibition law had since been rendered defunct while the attention and energy of social reformers had shifted focus to issues like woman’s suffrage and Mormon polygamy. In time, however, the prohibition movement did recover, thanks in large part to the efforts of female organizers and activists. The creation of the Women’s Christian Temperance Union in 1874 in particular would seem to mark the starting point in the second phase of prohibitionist activism in the history of the United States. Seeking to appeal to the moral sentiments of the American public through what was intended to be a specifically female and domestic perspective, the WCTU promoted abstinence from alcohol as being paramount to the cohesion and the happiness of the American family. The organization’s second president, teacher Frances Willard (1839-1898), explained its goals thusly in 1883. The purpose of the WCTU, she wrote, was, “Educating the young, forming a better public sentiment, reforming the drinking classes, transforming by the power of Divine grace those who are enslaved by alcohol, and removing the dram-shop from our streets by law.”    

    Thanks to the tireless advocacy of temperance campaigners like Frances Willard, a number of states began enacting new prohibitory laws over the course of the 1880s. Kansas went further than most, going so far as to ban the sale of alcohol by way of constitutional amendment in November of 1880. This was followed by a legal ban in Iowa in 1882 and the entrance of North Dakota and South Dakota into the union as officially dry states in 1889. In 1887, the Supreme Court also ruled in Mugler v. Kansas – in which the defendant, Peter Mugler, claimed relief for having been convicted of a crime for operating a brewery in central Kansas – that the Sunflower State’s constitutional ban on the sale of alcohol was entirely consistent with the various liberties guaranteed by the Bill of Rights and the due process protections of the 14^th Amendment. Writing for the majority, Associate Justice John Marshall Harlan (1833-1911) tellingly commented – in a seeming admission of the effectiveness of the WCTU’s efforts – that,

We cannot shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety, may be endangered by the general use of intoxicating drinks; nor the fact established by statistics accessible to every one, that the idleness, disorder, pauperism and crime existing in the country, are, in some degree […] traceable to this evil.

When the Mugler verdict still didn’t put an end to the existence of breweries and saloons in the supposedly dry state of Kansas, another female activist emerged on the scene whose persistence and clarity of vision was every bit the equal of the likes of Frances Willard, though her preferred method of spreading the message of prohibition could not have been more different.

    Once describing herself as, “A bulldog running along at the feet of Jesus [and] barking at what He doesn't like [,]” Caroline Amelia Moore (1846-1911), known after her second marriage in 1874 as Carry Nation, was an early member of the WCTU in northern Kansas whose brazenness in advocating for the prohibition of alcohol made her a figure of national notoriety and celebration within the span of her own lifetime. Initially content to “serenade” local saloon patrons with a barrage of hymns as they attempted to drink, Nation claimed to have arrived at a place of distinct dissatisfaction with her own lack of effectiveness and received a supposed message from God in the summer of 1900. “Go to Kiowa,” is what she claimed to have been told, with the accompanying encouragement, “I’ll stand by you.” Two days later, having traveled to Dobson’s Saloon in the town of Kiowa, Kansas, Nation proceeded to smash ever liquor bottle she could find with the armful of rocks that she had collected along the way. Thus began a one-woman campaign of vandalism and property destruction that would soon make Carrie Nation a household name. Arrested some thirty times between 1900 and 1910 for what she referred to as her “hatchetations” – so called because a hatchet soon became her implement of choice – Nation paid her own legal fees by giving lectures and selling merchandise. She also took to expressing her views in the form of two separate publications: The Smasher’s Mail, a biweekly newsletter, and The Hatchet, a regular newspaper. Near the end of her life, as the first decade of the 20^th century was drawing to a close, she even began to appear on vaudeville stages in the United States and music hall stages across the Atlantic in the United Kingdom, though more in the guise of a preacher than an entertainer. By the time of her passing in 1911, she had well and truly become a genuine national phenomenon, applauded as much by temperance activists as she was actively loathed by bartenders.

    Without necessarily attributing all of the temperance movement’s success during the era in question to the singular actions of Carrie Nation, it is nonetheless worth noting that the number of states which embraced prohibition increased markedly during the height of her one-woman anti-liquor crusade over the course of the 1900s. Oklahoma, for example, became a dry state in 1907, followed by Georgia and Mississippi in 1908 and North Carolina and Tennessee in 1909. Nation’s aggressive behavior undeniably caught the attention of the contemporary American public and helped drive temperance back to the forefront of the nation’s political and social discourse. But where Carrie Nation left off – being but one woman with limited energy and resources – the Anti-Saloon League arguably picked up. Formed in Ohio in 1893 by a former lawyer named Howard Hyde Russell (1855-1946), the League was far more bureaucratic than the WCTU or the ATS had ever been, with a hierarchical structure and an emphasis on organizational methods native to the world of business. It was also exceptionally pietistic in its tone, thanks in large part to the influence of the League’s most famous leader, Wayne Wheeler (1869-1927). Possessed of both a deep-seated hatred of alcohol and a natural talent for lobbying, Wheeler made exceptionally skillful use of contemporary publicity methods to convince state and federal politicians that prohibition enjoyed far greater popular support than an actual survey of the voters might have shown. In particular, the League established a long and fruitful relationship with a private agency called the Southern Publicity Association, one of whose largest and most lucrative clients was the resurrected Ku Klux Klan. The resulting three-way dynamic, between the League, the SPA, and the Klan, proved exceptionally influential, particularly in Southern states and in parts of the rural North. As the Klan came to publicly endorse the efforts of the League and its leadership, so the League become a vocal defender of the Klan and its activities. Within the context of the pre-WWI American South, this made for a very potent combination.

    The other major socio-political force which fed into and buttressed the efforts of prohibition activists in the leadup to the passage of the 18^th Amendment in 1917 was, unsurprisingly, the same wave of progressivism that had made the 17^th Amendment possible. The reasons for this alliance were at once complex and eminently foreseeable. For one thing, advocates of progressive policies tended to be fixated on the concepts of social uplift and purification; they believed that sensible, scientific measures could be put in place that would purge American society of its spiritually, economically, and politically deleterious aspects. The prohibition of alcoholic beverages fitted very neatly into this worldview by purporting to encourage moral behavior, responsible citizenship, and individual accountability. Progressive economists argued that banning the sale of alcohol would reduce binge drinking among industrial workers and result in less lost productivity due to Monday morning hangovers. Progressive eugenicists asserted that the consumption of alcohol damaged the so-called “germ-plasm,” the result of which would be the eventual degeneration of the Anglo-Saxon race. And progressive political crusaders avowed that the saloon and the whiskey bottle formed the central recruiting devices of the corrupt political machines that effectively controlled many of the country’s largest urban areas. Indeed, the banning of alcohol sales, from the contemporary progressive point of view, seemed poised to solve most of the socio-economic issues which the most influential voices of the era had purported to identify. That the notion also fitted well with the self-conscious religiosity of the increasingly powerful American middle classes certainly helped matters along as well.

    By the time the United States Congress approved the final text of what would become the 18^th Amendment on August 1^st, 1917, the number of states possessed of prohibition laws of their own had increased yet again since the last spate witnessed at the end of the previous decade. West Virginia joined the fold in 1914, followed by Alabama and South Carolina in 1915, Idaho, Colorado, Arkansas, Texas, and Virginia in 1916, and Nebraska on the first day of May in 1917. In some cases, these jurisdictions totally banned the sale of alcohol, either by legislation or an amendment to the state constitution. In others, they merely allowed for the sale and manufacture of alcohol to be banned on a county or municipal basis. But combined, along with all of the other prohibitory measures that had been implemented in the states since the end of the Civil War, they ensured that more than half of American lived in a “dry” precinct of some description by the middle of the 1910s. Granted, prohibition never seemed to rise to the position of being a major campaign issue during any of the federal electoral contests held throughout this era. During the Election of 1916, for example – the last one to be held before the passage of the 18^th Amendment – neither the Democratic incumbent, Woodrow Wilson (1856-1924), nor his Republican challenger, Charles Evans Hughes (1862-1948), took a strong position on the matter, no doubt in large part because both parties contained prominent “wet” and “dry” factions. By the time that the 65^th Congress finally met in the early spring of 1917, however, the deck had definitely been stacked in favor of the national contingent of “dries.” In all, one hundred and forty of the one hundred and eighty-four Democrats then serving in Congress were avowedly in favor of prohibition, as were one hundred and thirty-eight of the two hundred Republicans. All that was needed, it seemed, was for someone to make the proposal.

    So it came to pass, on August 1^st, 1917, that the United States Senate voted in favor of a resolution proposing an amendment to the Constitution banning the sale, manufacture, and transportation of alcoholic beverages for the subsequent approval of the various state assemblies. The final tally, in this instance, was 65 to 20, with each party providing ample majority support. The House of Representatives then proceeded to take up the measure, passing a revised resolution on December 17^th by a vote of 282 to 128. The Senate voted to approve this revision the very next day, with the result being that an amendment enforcing national prohibition was officially handed over to the states for ratification on December 18^th, 1917. Despite this relatively frictionless opening act, however, it does bear noting that the concept of national prohibition was not wholeheartedly or universally embraced by every sitting member of Congress. Notwithstanding the members of the House and the Senate who registered their disapproval by voting against the relevant resolutions, the proposal that passed regardless of these objections contained within it two “carve-outs” on behalf of those who remained somewhat wary of prohibition as a concept. First, unlike with any of the seventeen amendment that had been approved by Congress up to that point, the prohibition amendment contained language which would ensure that if the requisite number of states – circa 1917, thirty-six out of forty-eight – had not ratified the proposal by seven years to the day of its passage through Congress, the measure would be declared a failure. And second, in another novel move, the text of this same proposal declared that the terms thereof would become operative one year to the day after its successful ratification by the states.

    The purpose of the first of these caveats would not seem to be all that obvious. Why, for the first time in the history of the Constitution, did this particular group of lawmakers decide that this particular amendment proposal should include, in its text, an expiry date? What was it that this group of lawmakers was hoping to achieve? The answer, quite simply, is that they were hoping the proposal would fail. Not all of them felt this way, of course. As aforementioned, by the time the 65^th Congress convened in March of 1917, the majority of both parties’ congressional representation were avowed supporters of legal prohibition. But there remained significant factions in both party caucuses – over one hundred and twenty lawmakers in all, split more or less evenly between the Democrats and the Republicans – who were avowedly against any such measures and who would have preferred that the whole enterprise simply go up in smoke. Given that they were steeply outnumbered in both houses of Congress, of course, this was not a particularly likely outcome. And given the aforementioned degree of influence wielded by organizations like the Anti-Saloon League in certain parts of the country, many other lawmakers who might perhaps have voted against the proposal feared for their political lives if it became known that they had “wet” leanings. But if they could not defeat the proposal directly, these outnumbered Senators and Congressmen could always attempt to ensure that the ratification process took place according to a timeline of their own design. They might not have been able to thwart the forces of prohibition in Congress, but perhaps such resistance could be successfully mounted in the states. According to this kind of strategy, the “wets” wouldn’t even have to defeat the amendment by way of a sufficient number of negative votes. All they would have to do is draw the process out beyond seven years. So long as no more than thirty-five states voted to ratify by December 18^th, 1924, the prohibition amendment would be declared void and of no effect.

    The significance of the second cited caveat is comparatively quite clear. Why would the framers of the 18^th Amendment have included a stipulation ensuring that the provisions of the same did not come into force until one year had passed following its successful ratification? Enthusiastic as some of the nation’s prohibition campaigners were for alcohol to completely disappear from American public and private life, it would have been difficult for all but the most diehard enemies of drink to deny that such a drastic alteration to domestic buying patterns might carry with it certain negative consequences. The sudden cessation of the manufacture, transportation, and sale of any and all alcoholic beverages, in short, was bound to exert a powerfully negative effect on the American economy. Breweries and distilleries employing countless thousands of people would be forced to shut down, saloons, taverns, and bar would have to either close or change their business model, and any number of longshoremen and teamsters would be forced to cope with a significant loss of work. For better or worse, alcohol was the lynchpin of several very productive industries, and the shock caused by its disappearance would not be lightly felt. That is, unless the financial interests concerned were giving sufficient time to make the necessary preparations. If the nation’s distillers had a full year to transition to producing alcohol for medical or industrial purposes – both of which the relevant amendment did not stand to prevent – perhaps they might be able to keep most of their workforces employed. The same might be said of the nation’s tavern-keepers, who would certainly benefit from a little time to sort out what kind of future they might pursue in a world without alcohol. And so too would those who earned their daily bread by loading, transporting, and unloading the stuff. It may indeed have been the case that national prohibition was a done deal, but at least the resulting blow to the economy could be softened somewhat by building in a kind of grace period.

    As it actually played out, of course, this grace period was very much needed. The seven-year deadline turned out to have no measurable effect, with the 36^th state –i.e., Nebraska – ratifying the amendment just over a year after its passage through Congress. As certified by Secretary of State Frank L. Polk (1871-1943), January 16^th, 1919 thus marked the date that the 18^th Amendment became part of the Constitution. By the end of the year – after an apparently more vigorous debate than that which accompanied the amendment itself – Congress passed the Volstead Act (1919), the purpose of which was to legally define the term “intoxicating liquors,” to provide the federal government with the necessary tools to enforce the probation of the same, and to ensure that the manufacture of alcohol for medical and industrial purposes was properly regulated and protected. And then, at last, on January 17^th, 1920, the provisions of the 18^th Amendment were finally enforced. For the better part of the next fifteen years, beverages containing more than 0.5% alcohol by volume would be illegal in the whole of the United States of America. People could still drink the stuff, of course. Neither the amendment nor its enforcing legislation made personal consumption a crime. And over the course of the next decade, many people would still drink it. But whenever they bought it, or sold it, or transported it, or gave it away, they would be guilty of a federal crime. The result? Well, that’s another story entirely…

    For the purpose of the present discussion, what matters is the degree to which the 18^th Amendment was clearly the product of popular agitation rather than institutional machination. Banning the manufacture, sale, and transportation of spiritous beverages did not stand to have any direct effect upon the character or function of either the American federal government or the various state governments. Congress, in drafting and approving it, was not attempting to address a vital deficiency in the basic framework of American republicanism, and nor were its members seeking after more advantageous political outcomes by way of the same. There was no institutional advantage to be gained, in short, by ensuring that the United States became a dry country at the dawn of the 1920s. On the contrary, the only reason to pursue such an objective was to secure the continued support of the tremendous number of voters who loudly favored it. Prohibition – as explained at length above – was the long-term goal of a several waves of social activism that flourished, floundered, and flourished again over the course of the 19^th century. Its principal supporters, at first, were mostly doctors and clergymen whose interest, as stated at the time, was in saving lives and saving souls. But over time, by way of organization, and in the midst of victories and setbacks alike, the movement to ban drink became a hugely powerful political force.

    Women in particular came to play a important role in the mainstreaming of the campaign to close down the nation’s dram shops and breweries. By combining a species of middle-class Protestant piety with appeals to domestic tranquility – and throwing in, on occasion, a little militant sermonizing – organizations like the Women’s Christian Temperance Union were able to resurrect the anti-liquor crusade after its ignoble death during the chaos of the Civil War and sustain it until the likes of the politically canny Anti-Saloon League could take over the struggle at the beginning of the 20^th century. Thereafter, by way of an extremely effective campaign of public relations, sufficient support for prohibition was gathered as to make a constitutional amendment more or less inevitable. Was it to the benefit of the federal government, the state governments, or any of the officers of the same to support such an outcome at any point during this process? Not particularly. Individual statesmen, to be sure, had cause to be in favor of banning drink. As their constituents came to favor it, it made political sense for them to follow suit. But prohibiting the production and sale of alcohol was not the answer to any particular institutional problem. It would not have adjusted some aspect of the Constitution which time and practice had exposed as faulty. It would not have facilitated the growth of an expanded vision of American republicanism. And it certainly wouldn’t have helped to redefine the nature of citizenship in such a way as to essentially transform the basic premise of the American experiment. All that it would do was satisfy the moral and spiritual prejudices of a certain portion of the American population. It was what the people wanted, in short, and so it was that their representatives gave it to them.

The Purpose and Powers of the Senate, Part XXVIII: “Indispensable to the Nation's Life”

    The 16^th Amendment would seem to among the most commonly overlooked of its brethren. It was the final amendment to be drafted before the state legislatures lost their access to the drafting process itself, which makes it highly significant to the discussion currently underway in these pages. But its object is not what one might particularly call thrilling. The text of it reads, in full:

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.

Again, hardly thrilling. Indeed, quite mundane. And yet, the 16^th Amendment has proven to be exceptionally consequential. It is a product of its era, to be sure, being the brainchild of populism and imperialism in more or less equal measure. But beyond its particular historical significance, it also inarguably forms the cornerstone of the funding regime underpinning the modern American republic. Without the ability to collect taxes on personal incomes “without regard to any census or enumeration,” the United States Government would not be able to borrow the increasingly large sums of money which have come to constitute one of its primary sources of revenue and it would accordingly have been unable to fund most of the initiatives it has undertaken over the course of the last century. Without the 16^th Amendment, in short, the American republic would be but a shadow of the global power which the modern world has come to know. Say about this what you will – whether you believe a globally dominant United States is good for the world or not – but the historical significance of the thing would seem next to impossible to deny. Bearing this in mind, it would accordingly appear to be a line of inquiry worth pursuing precisely how the amendment itself came about. Who favored it, and why, and what did they ultimately hope to achieve?

    In order to answer these questions – and in order to satisfy the broader purpose of the inquiry currently underway – we must return once more to the so-called “Progressive Era” of American politics. Or rather, we must return to the Progressive Era…eventually. The amendment itself, after all, was approved by Congress in the summer of 1909 and was ratified by the requisite number of states at the beginning of 1913. But the story of how the whole initiative came about actually extends back at least as early as the 1860s. During the Civil War, it seems, in order to fund what would soon prove to be a truly gargantuan war effort, Congress passed the first of what would soon become several federal Revenue Acts. Introduced at various points between 1861 and 1865, these acts initially levied and then increased the first federal income tax in the history of the American republic, the proceeds of which would at their height account for approximately one-fifth of the annual federal revenue. Intended to compensate for increased personal investment in stocks as opposed to property – the latter of which the federal government had been freely taxing for decades – the levy took the form of a simple flax tax – three percent, initially – on personal incomes in excess of eight hundred dollars. As an emergency measure needed to see the nation through a disastrous and unprecedented war, the American people were evidently willing to tolerate such an intrusion into their personal financial affairs. And at length, by way of the Springer v. United States decision in 1881, the Supreme Court came around to acknowledging the measure as being in keeping with the Constitution. But none of this meant that income tax was going to continue to be collected indefinitely. By the time the Revenue Act of 1864 came time to be renewed in the early 1870s, Congress declined to do so on the grounds that such levies were no longer necessary. The war was over, the state of emergency had passed, and there just didn’t seem to be any cause for the federal government to continue collecting more than the standard mix of tariffs and property taxes.

    Enter, twenty years later, the administration of Grover Cleveland (1837-1908), the first Democrat elected to the office of President since 1856. Cleveland and his allies had made a general lowering of tariffs a major campaign promise during the leadup to the Election of 1892, and once in office proceeded to follow through on their pledge with the drafting of a major tariff bill in 1894. As the intended reduction in taxes upon raw materials would have also, in isolation, resulted in a reduction in federal revenues, however, certain among the Democrats who then controlled Congress sought to compensate by additionally levying a relatively modest federal income tax. This would constitute the first federal income tax in two decades, it was true, and the first ever to be collected outside of a period of national emergency. But in practical terms, on a per capita basis, it was substantially less onerous than its Civil War-era predecessors. Applying only to incomes in excess of four thousand dollars – and including dividends, gifts, and inheritances – the federal government would collect a mere two percent for itself. Not every Democrat within the contemporary party caucus was necessarily in favor of this attempt to balance the federal books, it bears noting. Indeed, many of them were far more concerned with simply lowering the tariffs and were willing to tolerate the corresponding tax increases – foisted upon them by populist Congressmen William Jennings Bryan (1860-1925) and Benton McMillin (1845-1933) – only because they suspected that the Supreme Court would strike them down. This, as it happened, is just what the Supreme Court ultimately did.

    Following the passage of the resulting Wilson-Gorman Tariff Act in 1894 – so named for its co-sponsors, Congressman William Wilson (1843-1900) and Senator Arthur Gorman (1839-1906) – a New York-based bank called the Farmers’ Loan & Trust Company determined to comply with the act on behalf of its various shareholders. Not only were the bank’s directors intent on delivering the applicable percentages to the Department of the Treasury, but they also intended to provide to this same body the names of every individual whose income was thus being taxed. Among these individuals, a man named Charles Pollack then raised an objection. Though he owned, in total, only ten shares in the bank, he did not want them unilaterally disposing of any portion of his income. Accordingly, he brought suit. And while his case was initially dismissed when it found its way into the federal circuit courts, Pollack then appealed to the Supreme Court, which delivered its ruling in the spring of 1895. The substance of the opinion, as written by Chief Justice Melville Fuller (1833-1910), was that while taxes on incomes alone were perfectly permissible under the terms of the Constitution – in keeping with the Court’s aforementioned Springer v. United States decision – taxes on incomes derived from dividends, rents, or interest decidedly were not. The reason for this, as Chief Justice Fuller explained it, was that an income derived from the ownership of a type of property – be it a piece of land, a building, or a share of stock – could not be legally separated from the property itself. Income derived from property, after all, was but an extension of whatever value that the property in question may have held. Taxes on property income were therefore tantamount to direct taxes, which, according to Article I, Section 2 of the Constitution, “Shall be apportioned among the several States which may be included within this Union, according to their respective Numbers [.]” While all other types of incomes could be taxed in the form of an excise, therefore, incomes derived from property had to be treated like property. The relevant portion of the Wilson-Gorman Act was therefore null and void.

    The Pollock v. Farmers' Loan & Trust Company (1895) decision did not turn out to be a particularly popular one among large swaths of the contemporary American political class. Indeed, at a time when members of both parties were increasingly concerned with things like inefficiency, waste, corruption, wealth inequality, and the rise of corporate monopolies, Chief Justice Fuller’s ruling that the primary incomes of some of the nation’s wealthiest citizens were practically immune from taxation did not land very well at all. The Democratic Party, for one, had become increasingly intertwined with the contemporary populist movement, the primary supporters of which were agrarian westerners who felt that an overreliance on tariffs would only end up punishing poor farmers and laborers. The industrialized East was where most of the nation’s wealth was concentrated, and yet it was the comparatively impoverished South and West where people would end up sacrificing a larger portion of their incomes in paying taxes on the goods they needed to survive. The Democrats accordingly made a meal out of the Pollack ruling, going so far as to include a federal income tax plank in their platform leading up to the Election of 1896 and choosing the aforementioned William Jennings Bryan as their nominee for President.

    Many progressive Republicans were also mightily displeased at the outcome of the Pollack case, though the nature of their disapproval had its roots in a different source. Whereas populist Democrats were concerned primarily with wealth inequality, Republicans like Robert La Follette (1855-1925), Theodore Roosevelt (1858-1919), and Norris Brown (1863-1960) saw the era’s increasingly large and powerful corporations as representing the single greatest threat to the prosperity of the American citizen. So long as these entities were permitted to continue growing unchecked, these men avowed, they would eventually form monopolies which no force on Earth could counter and whose primary victims would be the consumers forced to pay whatever rates their corporate overlords set. By disallowing the taxation of things like dividends and interest – absent a practically unworkable scheme of state-by-state apportionment – Pollack effectively helped to aid this process along by allowing corporations to drain more wealth out of the country than they could ever pay back in tariffs. But while Republican lawyers and statesmen began notching out victories in the states against various species of corporation – see La Follette’s battles with the railroads during his tenure as Governor of Wisconsin and Roosevelt’s support for the Ford Franchise-Tax Bill (1899) as Governor of New York – similar success at the federal level continued to elude them in the wake of the Pollack ruling. As long as Chief Justice Fuller’s decision was still the last word on taxing property incomes, there seemed to be no point in even broaching the subject in Congress.

    Events finally took a significant turn in favor of reform in the spring of 1909 following the inauguration as President of Republican William Howard Taft (1857-1930). In a special message to Congress in July of that year, Taft drew attention to the Pollack decision, what he perceived to be its negative impact on domestic tax policy, and the need for some manner of remediation. “The decision of the Supreme Court in the income-tax cases,” he notably declared,

Deprived the National Government of a power which, by reason of previous decisions of the court, it was generally supposed that Government had. It is undoubtedly a power the National Government ought to have. It might be indispensable to the nation's life in great crises. Although I have not considered a constitutional amendment as necessary to the exercise of certain phases of this power, a mature consideration has satisfied me that an amendment is the only proper course for its establishment to its full extent. I therefore recommend to the Congress that both Houses, by a two-thirds vote, shall propose an amendment to the Constitution conferring the power to levy an income tax upon the National Government without apportionment among the States in proportion to population.

Unsurprisingly, this call for an income tax amendment by the leader of their party roused many progressive Republicans to begin pursuing exactly that. Ultimately, it was the aforementioned Senator Brown who succeeded in drafting the requested reform. But its successful passage through Congress was only made possible by a major split then threatening to tear the Republican Party apart.

    Taft’s message, it bears noting, had been delivered at a time when his party both held the majority in both houses of Congress and was also in the midst of a rather punishing debate about federal tariffs. Progressive Republicans like Senators Norris and La Follette were for their part favor of lowering most tariffs, as were populist Democrats from the South and West. Tariffs, they all agreed, disproportionally impacted the poorest members of American society while raising far less in federal revenues than other kinds of taxes might. Conservative Republicans, meanwhile, held protectionism to be a core tenet of the Republican Party gospel. As explained by men like Nelson Aldrich (1841-1915), majority leader and chairman of the Senate Finance Committee, tariffs protected the profits of American business, ensured high wages for industrial workers, and prevented American farmers from being undercut by foreign competition. In the immediate, given this division, there did not seem to be much hope for compromise. When Republican Congressmen Sereno Payne (1843-1914) put forth an initial proposal that would have seen tariffs lowered across the board, Senator Aldrich offered a counterproposal that would have lowered fewer tariffs and actively increased several more. Progressives then responded with a proposal straight out of Taft’s address. It was the duty of the those who aimed to lower federal tariffs, he said, in light of what he described as the “rapidly increasing deficit […] to arrange the duty so as to secure an adequate income, and […] that if it was not possible to do so by import duties, new kinds of taxation must be adopted [.]” A tax on inheritances was Taft’s first choice, but as this seemed to be something of a non-starter with Senate Republicans, he was instead inclined to suggest, “An amendment to the tariff bill imposing upon all corporations and joint stock companies for profit […] an excise tax measured by 2 per cent on the net income of such corporations.” Not only would this serve as, “An excise tax upon the privilege of doing business as an artificial entity” but it was calculated to, “Bring into the Treasury of the United States not less than $25,000,000.” With a newly inaugurated President thus urging them on, progressive Republicans accordingly inserted just such an amendment into the tariff bill.

    It was at this point that Senator Aldrich attempted a little slight-of-hand. With the Republican caucus thus split and his leadership in the Senate under threat, he decided to offer his progressive opponents something on the order of a trade. In exchange for their support of his version of the tariff bill – with included more increases than decreases as well as a tax on corporate incomes – he was willing to throw his own weight behind the draft income tax amendment that Senator Brown was attempting to promote. In actual fact, he was not in favor of any such alteration to the Constitution. Like many Conservative Republicans, Aldrich was too much of a friend to big business to believe taxing their dividends to be in the least bit desirable. But what the Senator from Rhode Island was betting on was that the amendment would never be ratified. He could stomach – and would stomach – an excise tax on corporate incomes, but he would only vote for Senator Brown’s beloved amendment because he believed it was doomed to failure. On July 12^th, 1909, this wager was put to the test, with a unanimous affirmation in the Senate and a vote of 318-14 in the House The progressive Republicans came around, conservative Republicans held firm, populist Democrats jumped at the opportunity, and protectionist Democrats voted their interest. Nearly everyone, it seemed, had got what they wanted. Now it fell to the states to prove Senator Aldrich right or wrong.

    Obviously, given that the 16^th Amendment is what it is, Senator Aldrich was wrong. Not only were state legislatures in the South and West already inclined to support any such measures as would obviate the need for the punishing federal tariffs which their primarily agrarian inhabitants actively struggled to pay, but a sharp rise in commodity prices that had begun in the late 1890s also primed states in the Midwest and even the Northeast to respond favorably as well. In addition, there also existed an increasingly influential segment of the Republican Party inclined to view an undifferentiated federal income tax as an essential ingredient in the national program that they envisioned. Described by faction leader and former President Theodore Roosevelt in a speech in 1910 as the “New Nationalism,” this program included the creation of a national health service, social insurance, farm relief, and worker’s compensation, all of which was to be accompanied by a general strengthening of the American military with an emphasis on protecting the American merchant fleet. Absent some means of funding such measures, of course, any one of them might have proven to be ruinously expensive. In consequence, Roosevelt Republicans were also strongly in favor of a robust regime of inheritance taxes and federal income taxes by which their vision of a new America for the 20^th century might be placed on a stable footing. In light of the support increasingly enjoyed by the likes of Roosevelt – whose popularity grew in proportion as that of his hand-picked successor, Taft, waned – the only group left inclined to vote against ratifying Senator Brown’s amendment were diehard conservative Republicans like Senator Aldrich and his supporters. And as 1909 progressed through to 1913, this faction’s influence steadily evaporated.

    The actual progress of ratification makes for a rather interesting tale. In the first year after the amendment’s approval, from August of 1909 to August of 1910, only nine states saw their way clear to providing their affirmation. But among that small number were exactly the states one would expect to find at this early stage: Alabama, Kentucky, South Carolina, Illinois, Mississippi, Oklahoma, Maryland, Georgia, and Texas. All but Illinois were located in the South, and all were primarily agrarian in terms of their economy. In light of their aforementioned antipathy towards the continued imposition of federal tariffs, their support for a federal income tax was more or less a given. The next stage in the ratification process took place between January of 1911 and July of that same year, during which time no fewer than twenty-two states added their own affirmations to the record. Among these twenty-two were seven from the West – Idaho, Oregon, Washington, Montana, California, Nevada, and Colorado – ten from the Midwest – Ohio, Indiana, South Dakota, Nebraska, North Dakota, Michigan, Iowa, Kansas, Missouri, and Wisconsin – three from the South – North Carolina, Tennessee, and Arkansas – and one – New York – from the Northeast. Again, most of the enthusiasm seemed to come from regions of the country most likely – due to the nature of the local economy – to favor a shift from taxes on commodities to taxes on incomes, with only one state from the region which benefitted from a reliance on tariffs chiming in at the very end.

    The next five states to ratify the amendment were also something of a mixed bag. There was Arizona, in the Southwest, which had only just become a state and was dominated by the Democratic Party; Minnesota, in the Midwest, which was deeply agrarian in its politics; Louisiana, in the South, about which much the same could be said; West Virginia, in the Southeast, where the mining industry was king; and Delaware, in the Northeast, which was the odd man out. Delaware being the 36^th state to vote in favor of ratification, the process was officially completed on February 3^rd, 1913. Over the next several months, the states that followed were similarly telling. New Mexico and Wyoming were very much western states, the former of which had only acceded to the union in January of 1912, and New Jersey, Vermont, Massachusetts, and New Hampshire were all firmly in the Northeast. Connecticut and Rhode Island, it bears noting, each voted to reject the amendment, while the state of Pennsylvania never bothered to even consider it. Given that all of these Northeastern states benefited from a reliance on federal tariffs over federal excises, such a result was rather to be expected.

    All the same, it is interesting to note that Roosevelt’s native New York, though home to some of the wealthiest individuals and corporations in the country, opted to ratify the amendment relatively early in the process, and that the state which carried the amendment across the line, Delaware, was also located in the Northeast. These two ratifications – along with those of New Jersey, Vermont, Massachusetts, and New Hampshire – would seem to speak to the degree to which the tax debate in Congress which had given rise to both the Payne-Aldrich Tariff and the 16^th Amendment succeeded in fracturing the contemporary Republican Party. Whereas, under the leadership of President William McKinley in the late 1890s, Republicans had been so supportive of protectionism that they approved the Dingley Tariff (1897), one of the highest and longest lasting in the history of the United States, the influence of William Howard Taft proved insufficient to either assuage the progressives in his party or elicit compromise on the part of the conservatives. Indeed, his stewardship of the party proved so divisive – or else the tensions which McKinley had managed to keep at a low simmer could no longer be prevented from finally boiling over – that the Republican National Convention, held in the summer of 1912, quickly devolved into a series of complaints and recriminations on the part of the progressive wing of the party and saw Taft ultimately gain the nomination and Roosevelt decide to bolt. The subsequent formation of the Progressive Party under Roosevelt’s leadership in turn resulted in the incumbent Taft finishing in third place in the Election of 1912, Roosevelt finishing in second, and Democrat Woodrow Wilson coming in first.

    But this is all rather beside the point, fascinating though it may be in its own right. What matters, under the circumstances, is what the proposal, approval, and successful ratification of the 16^th Amendment says about its fundamental character. Was it mainly a popular initiative, an institutional reform, or something in between? In light of both the nature of the policy which the amendment sought to empower and the political machinations which resulted in its ultimate approval by Congress, the latter of these characterizations would seem to be the most apt. There can be no denying, circa 1909, that the concept of a federal income tax had more than its share of popular support. As aforementioned, farmers and laborers in the South, West, and Midwest increasingly struggled under the weight of federal tariffs over the course of the 1890s and 1900s whose burden Northeastern industrialists were able to shoulder with relative ease. Senators representing the former regions accordingly had every reason – inasmuch as the legislators who appointed them had every reason – to support such measures as would offer relief to their constituents by shifting the nation’s tax burden to those most able to pay it.

    All that being said, the story of precisely how the 16^th Amendment made it out of Congress in the first place – and the pace and cadence of its eventual ratification – speak to an a substantially different line of causation. Senator Norris Brown, the initial sponsor of the amendment, no doubt acted when and how he did because he felt he had the backing of the newly inaugurated President Taft and because he believed that Taft broadly shared his progressive political principles. And Senator Nelson Aldrich, whose support inarguably made the amendment’s approval possible, most assuredly acted as he did only in order to allay a major division in his party and to secure the passage of his preferred version of the tariff bill then under discussion in Congress. That his strategy failed on both counts would seem to be a testament both to the depth of the cleavage then tearing the Republican Party apart and to the degree to which a federal income tax represented a policy with national appeal. To no small extent, it must be said, state legislatures acted as they did during the ratification process because the members thereof understood that providing tax relief to the constituents was bound to pay electoral dividends. But there was also doubtless a significant degree of party politicking wrapped up in which states voted, and when, and how.

    The ratification of the 16^th Amendment, recall, took place at the same time as the two major parties were readying themselves to take part in the Election of 1912. And in terms of the Republicans in particular, it took place over a period that witnessed their continued splintering and final division into two parties. In consequence, while Republican state legislators were then in the midst of considering the aforementioned amendment, they were also simultaneously undertaking to hold primaries and assign delegates for the purpose of choosing their party’s eventual nominee for President. Given that Roosevelt’s New Nationalism program – discussed above – held up the imposition of federal income taxes as key to its eventual success, and given that President Taft received most of his support from regions of the country where conservative Republicans on the model of Senator Aldrich held sway, it would seem fairly reasonable to assume that either ratifying or rejecting the amendment in question became a part of how the various state Republican parties – where said parties were in control of the state legislature – asserted their factional standing as the Election of 1912 drew ever closer. Were these Republicans legislators entirely unmoved by the financial travails of their constituents or their own desire for reelection? Of course not. But with a presidential contest in the offing and their party in the process of a very messy ideological realignment, the Republicans who then controlled the various state assemblies had things to consider beyond simply pleasing the voters. The 16^th Amendment, therefore, like so many of its predecessors, would seem best characterized as the product of both popular and institutional support.                                    

The Purpose and Powers of the Senate, Part XXVII: Strange Times

    The 13^th, 14^th, and 15^th Amendments are really something of a special case. Not only did they fundamentally reconfigure the political culture and the social and economic character of the American republic as a whole, but they were approved and ratified under a set of extremely unusual circumstances. The Civil War (1861-1865) had just concluded, between five hundred thousand and one million Americans had just been killed, the states of the former Confederacy were under military occupation, and millions of enslaved peoples had just been freed under the terms of an executive order issued by President Abraham Lincoln (1809-1865). Unsure that this latter measure would stand up to judicial scrutiny, Lincoln then partnered with the Radical Republicans who controlled both houses of Congress to secure an amendment to the Constitution which would ban slavery unequivocally. Lincoln was killed in April of the same year that the measure was successfully ratified by the states – becoming the 13^th Amendment on December 6^th, 1865 – after which the Republicans then resolved to advance several additional modifications. The 14^th Amendment – which sought to redefine the nature of citizenship and guaranteed equal protection under the law – was thereafter approved by Congress in June of 1866 and ratified by three-fourths of the state legislatures on July 9^th, 1868, while the 15^th Amendment – which sought to guarantee the right to vote regardless of race, color, or having previously been enslaved – was voted out of Congress in February of 1869 and ratified by the three-fourths of the states on February 3^rd, 1870.

    Collectively, these three amendments fundamentally transformed the American republic and set the stage for the next century of American social and political history. But it is because their effects were so all-encompassing that it becomes exceptionally hard to determine whether the states or the people had the greater interest in seeing them passed. By the end of the Civil War, having been confronted with far more bloodshed than many of them ever thought possible, both the inhabitants and the political representatives of the various Northern states had largely come to identify the institution of slavery as both the cause of the conflict and a problem in need of solving. The aforementioned Emancipation Proclamation (1862) had sought to use executive authority to free the enslaved peoples residing in the rebellious Southern states, but this arguably amounted to only a half-measure at best. Not only was such an executive order vulnerable to Supreme Court nullification, but the measure did not affect the status of enslaved peoples in the “loyal” states of Missouri, Kentucky, Maryland, and Delaware. Amending the Constitution would address these issues definitively, though it would also require a good deal of careful horse-trading to see it approved by Congress and then ratified by the states. The declared secession of the slaveholding South ensured that most of the Congressmen and Senators who would otherwise have objected to an anti-slavery amendment simply weren’t represented, but there were still a number of Northern Democrats in each of the chambers who were likely to frustrate any attempt by their Republican opponents to push through such a drastic measure. And even if the draft amendment secured an affirmative vote in Congress, it still wasn’t entirely clear whether ratification might be achieved by securing just the approval of three-quarters of the loyal states or if three-quarters of the total number of states would ultimately be required. But such was the apparent importance of achieving a final end to slavery to the contemporary Republican leadership that they forged ahead undaunted towards that selfsame goal. The cost would be high and the road exceptionally treacherous, but they would see slavery abolished.

    In order to achieve this objective, ultimately, Lincoln and his allies resorted to what might now be considered somewhat less than ethical tactics. Taking advantage of the fact that the session of Congress that was set to meet following his victory in the Election of 1864 would include a number of members who had not been re-elected, the President authorized certain of his agents to make offers to a number of outgoing House Democrats of patronage postings or “campaign contributions” in exchange for their support for the amendment. Men were presented with positions in the Customs Service or federal postmaster positions in the state of their choice, and Secretary of State Seward made a fund available for direct payments to individual Representatives. When these tactics yet failed to move a resolute handful of Democratic Congressmen, Lincoln then approached each of the men in person in an effort to sway them as best he could. In the end, on January 31^st, a two-thirds majority was reached in the House by a margin of 119 to 56. Together with the prior Senate approval – by a vote of 38 to 6 – this sent the anti-slavery amendment to the states. Lincoln signed it – though he was not required to – on February 1^st, 1865, and it was on that same day that the ratification process began.      

    Ratification, of course, was the more troubling proposition in light of the relative positions of the various states. In February of 1865, the American Civil War had not yet concluded. And while it was permissible, under traditional quorum rules, for Congress to continue to legislate so long as at least half of its members were present, the Constitution made no allowance for amendments to be ratified by anything less than three-quarters of the total number of state legislatures. How, then, was this to be accomplished when almost one third of that total number of states – eleven out of thirty-six – were actively in rebellion against the authority of the federal government? In some cases, the answer was relatively simple. Several of the states which had seceded from the union were already under military occupation, the result of which was the formation therein of a series of ad-hoc pro-union governments. But while these provisional legislatures were quick enough to vote in favor of the relevant amendment, those states which remained under the control of the Confederate government presented a somewhat stickier problem. It was the position of the federal government throughout the whole of the Civil War that the Southern states which formed the Confederacy had not actually left the union. Rather, they were simply being governed by those who chose to adhere to the legal fiction that was the Confederate States of America. A state which had yet to be occupied by union troops therefore occupied something of an unusual position. While it remained, legally, very much part of the union, any such state was essentially without a recognized government. The existence of such states – being essentially without a proper legislature – accordingly raised an important question within the context of a constitutional amendment. That is, if Article V declared that a provisional amendment, “Shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states,” what was the remedy if a significant portion of the states were not possessed of valid legislatures? Was the approval of three-fourths of the existing legislatures what was called for by this provision, or the approval of the legislatures of three-fourths of all of the states?

    President Lincoln, for his part, thought these sorts of questions to be a needless distraction. It was in everyone’s interest, he said, for the rebelling states to be restored to their proper place in the union as expeditiously as possible. And once a state was fully restored, it could hold a vote on the relevant amendment. He did not mention, to be sure, what restoration would ultimately look like, or what requirements might have to be met before a state could be readmitted to the federal fold. His fellow Republicans in Congress had certain ideas about just that. But the general thrust of his feeling was generally quite clear. Rather than quibble about the meaning of certain passages of the Constitution, concerned parties should rather direct themselves towards the speedy mending of the North/South breach. Lincoln gave voice to the opinion, it’s worth noting, in a speech he delivered on April 11^th, 1865. Three days later, he was assassinated while attending the theatre in Washington, and the subsequent ascension of his Vice-President, the pro-union Tennessee Democrat Andrew Johnson (1808-1875), to the office of chief executive somewhat complicated matters going forward. Johnson was not trusted by the Republicans who controlled Congress, suspicious as they were that he favored a policy of amnesty for former Confederates, and there subsequently emerged two competing strategies for ratification. The Republicans, as aforementioned, had certain ideas about how and when the rebellious states should have been allowed readmittance to the union. Namely, they favored restoration as being contingent upon acquiescence to certain Republican Party priorities, the anti-slavery amendment being chief among them. Johnson, meanwhile, favored a more conciliatory position. Being a Southerner himself, he was inclined to negotiate with the secessionists; to help them form new governments quickly and to discuss the flexibility with which the ant-slavery amendment might practically be enforced. The results, to say the least, were more than a little chaotic.

    For one thing, President Johnson’s approach constituted circumventing Congress entirely. While the Republicans in the House and the Senate were attempting to use their legislative authority to define how and when former Confederate states could rejoin the union in effort to promote the ratification of both the anti-slavery amendment and its possible successors, Johnson simply reached out to interested parties in the rebellious states for the purpose of forming new post-Confederate governments. In order to play a part in one of these governments, men purportedly had to demonstrate their loyalty to the federal government, though this did not stop many former Confederate officials and officers from successfully making the cut. And in an effort to secure ratification before Congress could begin setting terms, Johnson also made a number of personal assurances which looked set to weaken enforcement measure in question. In response to concerns expressed by the governors of North Carolina and Mississippi, for example – both of whom he had appointed to their posts – the President avowed that the enslaved peoples ultimately freed by the pending amendment would only be required to have some of their civil rights recognized. So long as they would be permitted to, say, testify in a court of law, it would be up to the various state governments to decide whether they could also vote in, or stand for, state or federal elections. These were, to be sure, exceptionally troubling promises for an American President to make, and they most certainly did not align with the intentions of the Republican Senators and Congressmen who were the principal authors of the anti-slavery amendment.

    All that being said, Johnson’s efforts were ultimately successful. Though he promised nervous Southern governors that abolishing slavery would not necessarily amount to fully freeing the region’s enslaved population, and though several states accompanied their instruments of ratification with express declarations that they in no way endorsed federal meddling in the political status of former slaves, the President’s own meddling with Congress’s plan for the defeated South did result in the ratification of the 13^th Amendment. By the end of the first week of December, as 1865 came to a close, the hastily assembled legislatures of North Carolina and Georgia brought the total number of affirmative votes up to the necessary twenty-seven. In his capacity as Secretary of State, William Seward thereafter certified this result while giving no notice whatsoever to the aforementioned qualifications. The amendment then formally became part of the Constitution on December 18^th, 1865. On President Johnson’s part, it’s fair to say, this constituted a great success. Having secured the approval of the anti-slavery amendment with the vital aid of a number of former Confederate states, there now seemed to be no grounds upon which the Republicans who controlled Congress could refuse to readmit these same states to their proper place in the union. And the fact that that he had also incurred the debt of a number of his fellow Southern politicians for having paved the way for the restoration of their states to their proper representation in Congress certainly didn’t hurt. As a result of the next mid-term election, Southern Senators and Congressmen would return to their proper place, and then Johnson might just be able to set about governing the nation properly.

    Successful though this “Presidential Reconstruction” may have been in the short term, however, the Radical Republicans who controlled Congress were far from finished with their reformist agenda. Abolishing slavery was arguably the least of what they hoped to accomplish, and it wasn’t long before they moved forward with the next phase of their effort to fundamentally transform American life. This began, in the immediate, with the passage of the Civil Rights Act of 1866. Intended as a direct challenge to the so-called “Black Codes” in place in the former Confederate states – which laws, though they pre-dated the Civil War in most cases, gain new importance in its aftermath as a means of preventing former slaves from asserting the legal and economic freedoms to which they were due – the Civil Rights Act was effectively a federal guarantee of citizenship regardless of race, color, or previous condition of servitude. Understandably – given the kinds of promises he had made in exchange for Southern ratification of the 13^th Amendment – President Johnson strongly objected to any such guarantees being made at a time when the states of the former Confederacy had yet to be reseated in Congress and chose to exercise his veto power accordingly. But while Congress was able to successfully override this veto by the beginning of April in 1866, there remained some degree of concern within the Republican caucus as to the law’s ultimate viability. Part of what President Johnson had been concerned about was the propriety of Congress unequivocally overruling the laws of states which otherwise had no say in the matter. The Civil Rights Act, to be sure, was a drastic sort of thing, and many Republican members of Congress openly wondered if it might in fact have been too drastic to pass judicial muster. To that end, beginning in that same month of April, plans were set in motion for another amendment to the Constitution.

    To be fair, judicial scrutiny was not all that the Republicans feared. While the ratification of the 13^th Amendment absolutely represented a victory, it was not a victory entirely without a downside. Prior to the outbreak of the Civil War and the departure of the representatives of the Southern states from the House, the South had consistently enjoyed a degree of power and influence within that body proportionally larger than they should have based solely on their citizen populations. The reason for this had to do with an infamous clause found in Article I, Section 2 of the U.S. Constitution. For the purpose of apportioning seats in the House of Representatives, it read, the number of districts to which each state was entitled would be determined,

According to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

“All other persons,” of course, referred to those who were enslaved. If it had been up to the delegates from the states in which slavery was economically significant, to be sure, this clause would not have been included at all. Indeed, they would have loved nothing more than to count every enslaved person they owned for the purpose of increasing their power in Congress while granting these same individuals no political rights whatsoever. The Three-Fifths Compromise was intended to stake out a middle ground. The principal slave-holding states would enjoy more power than they were really entitled to, but it would amount to less power, as a whole, than they might otherwise have preferred. But with the ratification of the 13^th Amendment, this compromise was no longer valid. Formerly enslaved peoples would now be counted as whole numbers for the purpose of apportionment. In the moment, in 1866, this was not the most urgent problem. But if nothing was done in response to this change in time for the census of 1870, the Southern states would finally get what they had wanted as far back as 1787. That is to say, their representation in Congress would increase dramatically while the people they had to thank for it would continue to be denied their rights.

    In addition to their stated moral objective of ensuring that formerly enslaved peoples would be able to take their rightful place as American citizens, therefore, the Republicans who controlled Congress in 1866 also had a more grounded reason for supporting a citizenship amendment to the United States Constitution. Namely, self-preservation. Having just given Southern Democrats a tremendous gift in the form of enlarged delegations in the House, they sought to counter the resulting advantage by ensuring that formerly enslaved peoples would be able to vote and to stand for office however they themselves saw fit. In terms of execution, however, this was easier said than done. There still remained a far from insignificant number of Northern Democrats in Congress who were not inclined to allow the federal government to effectively start overwriting state laws. And the representatives of states like Kentucky, Maryland, Missouri, and Delaware were likewise unlikely to countenance the crafting of any amendments intended to fundamentally re-articulate the legal and political status of their own sizeable populations of free Blacks and formerly enslaves peoples. The result, in the end, was a kind of piecemeal approach. Rather than try to pack all of their priorities into a single amendment, the Republicans instead resolved to separate their desired objective into two distinct proposals. In the first place – doubtless as a measure of its relative importance – they settled on an amendment which would merely ensure that 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.” Subject to additions, alterations, and more than a little negotiation, the resulting draft amendment was accordingly approved by the Senate (33-11) on June 8^th and the House (138-36) on June 13^th and then submitted to the states for ratification.

    The states of the former Confederacy – surprising no one whatsoever – categorically refused to even contemplate such an abrogation of their authority over the rights and privileges of their inhabitants. Tennessee was the lone exception, voting to ratify the draft amendment on July 18^th, 1866. But in every other instance, the South formed an impenetrable wall. Congressional Republicans chose to respond to this intransigence with perhaps their most radical initiative yet. Twenty-eight states were required to ratify the amendment before it could become a valid part of the Constitution. When it became clear, in the early spring of 1867, that the former slave states were not going to budge, the Republican-controlled Congress passed the so-called “Reconstruction Acts.” Their effects were essentially twofold. First, notwithstanding the fact that President Johnson had spent the better part of the previous year personally helping the states of the former Confederacy construct post-war governments, the Reconstruction Acts created a series of federal military districts, each led by a general officer of the victorious Union Army. Administered as part of the War Department, these districts would essentially serve as regional intermediaries between the federal government and the state governments. The commanding generals were to be empowered to enforce such laws as were passed by Congress and would enjoy free reign in dismissing any governments or officeholders who willfully engaged in disobedience to, or obstruction of, the same. In addition, the Acts also made a point of decreeing, in no uncertain terms, that any state within the boundaries of the military districts wishing to return to civilian rule and retake its place in the House and the Senate would be required to ratify the aforementioned citizenship amendment and form yet another new government in keeping with the priorities and requirements of Congress.

    While these policies, in many ways, amounted to little more than extortion, they were neither unconstitutional, nor illegal, nor altogether unsuccessful. As these aforementioned acts began to be enacted over the course of 1867 and into 1868, the formerly recalcitrant Southern states began to slowly come around. Arkansas was the first to do so, finally voting for ratification on April 6^th, 1868. Florida followed soon after on June 9^th. Then came North Carolina on July 4^th, Louisiana and South Carolina on July 9^th, Alabama on July 13^th, and Georgia on July 21^st. The Peach State brought the final count up to a more than adequate thirty, after which – on July 28^th – Secretary Seward made the official declaration that the 14^th Amendment was now a part of the Constitution. Several Southern states, it is true, yet remained outside the federal fold. Virginia, Mississippi, and Texas had notably declined to ratify the amendment, and in the case of the latter two would continue to hold out into 1870. But for the time being, in light of what the Radical Republicans had aimed to accomplish, the whole project constituted an undeniable success. The states of the former Confederacy may have been in line, not only to regain their seats in Congress but to do so in greater numbers than before, but at the very least their formerly enslaved populations could no longer be denied their basic rights. All that remained, as the Republicans in Congress had intended, was one final initiative to conclusively balance the scales of political power in the South. By way of another amendment, the Southern freeman would get his vote.

    Partly, this conviction was the product of the strategy discussed above. Unable to secure the support of the requisite number of Democratic Senators and Congressmen for a single amendment encapsulating all of their policy priorities, the Radical Republican leadership had consented to separate their final objective into two separate initiatives. Having secured the ratification of the 14^th Amendment, therefore, the time had simply come to pursue the addition of its companion. That being said, there were also certain practical considerations at play which added a sense of urgency to the project in question. For one thing, as aforementioned, the Census of 1870 was soon to take place. Unless those formerly enslaved peoples were fully secured in their political rights at the same time that the states themselves were granted the expanded representation which they were due, it was virtually a certainty that Congress would return to Democratic control. And in the meantime, as the former Confederate states began to retake their place in Congress, the totality of Republican control was already slowly beginning to dwindle. In order to make the most of the advantage which they had enjoyed since the Southern representatives vacated their seats at the beginning of the Civil War in 1861, the Republicans who still controlled Congress were accordingly inclined to make a final, ambitious play. While the 40^th Congress was still in session following the 1868 mid-terms – and knowing full well that March of 1869 would witness the return of the Democrats to some semblance of their former power – Congressional Republicans resolved to push their latest amendment through the House and the Senate in something less than three months.

    To accomplish such a thing was about as challenging as it sounds. Notwithstanding the understandable objections of representatives from states like Missouri, Kentucky, and Maryland – all of which emerged from the Civil War and its aftermath socially and culturally battered and with large populations of formerly enslaved peoples – different factions within the Republican Party itself harbored clashing priorities when it came to whom they felt ought to be able to vote in, or stand for, state and federal elections. Northern states were often bastions of Nativism in which the notion of allowing the foreign-born to vote – even if they’d become citizens – was quite simply a non-starter. In the West, this same attitude prevailed when it came specifically to immigrants from China, many of whom had found work on the railroads that were then under widespread construction. And in all quarters of the Republican Party, there seemed to be agreement as to importance of continuing to disqualify those who had directly supported the Confederacy. Bearing all of these objections in mind, any amendment which conclusively enfranchised every citizen of the country simply wouldn’t do. In consequence of this – and to the shame of those Republicans who valued principle over pragmatism – the text of the amendment, as it was eventually hashed out, did as little as possible to take account of potential loopholes. “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 [,]” was all that it said, along with a brief provision permitting Congress to enforce the same terms. Room was thus left open for both literacy tests and poll taxes, both of which would be used thereafter to great effect to deny suffrage to various communities of American citizens. But this, as many contemporary Republicans doubtless told themselves, was simply the price of doing business. Pursuant to this compromise, the House voted on February 25^th, 1869 to approve the proposed amendment by a margin of 144-44. The Senate followed suit the next day by a tally of 39-13. Thereafter, as before, the ratification process began.

    Events progressed thereafter in a mostly predictable fashion. In most Northern states and in the reconstructed Southern states – the latter of which had been readmitted to Congress under the close direction of the same – the process proceeded apace. President Ulysses S. Grant (1822-1885) gave the effort his endorsement and personally sought the cooperation of certain governors and legislators. By the summer of 1869, as the process began to slacken, Congress once more stepped in and put its authority to use. In this case, with the passage of another Reconstruction Act, the Radical Republican majority once again mandated that those remaining Southern states which had yet to retake their place in Congress would be required to ratify the new amendment before they could do so. Unsurprisingly, this prompted Virginia, Mississippi, Texas, and Georgia to each supply their ratification between October of 1869 and February of 1870. On March 30^th of the latter year, Secretary of State Hamilton Fish (1808-1893) was then able to certify that the 15^th Amendment had become a part of the Constitution. The next several years accordingly witnessed a fundamental shift in the nation’s social and political status quo. Republicans having successfully taken control of the governorships and legislatures of every Southern state besides Virginia, the way was now open for Black voters and Black candidates to exercise their constitutional rights and take their place in the electoral system. Black men were accordingly elected to local, state, and federal offices in numbers completely unheard of before that point in American history. As a percentage of the size of the Black communities in the various states, the number of those elected remained far below what it should have been, of course, and political violence and fraud became increasingly common as the 1870s wore on and former Confederates began to assert themselves as the dominant political force in the region. But for a time, and thanks in no small part to the ongoing presence of US military personnel, Black suffrage flourished in the former slave states in a way that had previously been impossible. Between 1870 and 1876, over seven hundred Black men were elected to serve in Southern legislatures, fifteen Black men represented Southern states in Congress, and two Black men were chosen by the legislature of Mississippi to represent that jurisdiction in the United States Senate.

    A great deal more would occur over the course of the wanning decades of the 19^th century which might conceivably bear commenting upon concerning the legacy of the relevant amendments. The end of Reconstruction, the rise of Jim Crow, the return to power of the Democratic Party, and the Supreme Court’s validation of poll taxes and literacy tests; all of these things would end up shaping how and where the terms of the 14^th and 15^th amendments would ultimately be applied. But these developments – though important in their own right to understanding the story of American democracy – do not necessarily bear upon the investigation underway herein. The purpose of this present series is to come to a deeper understanding of how and why the United States Senate functions as it currently does. And the purpose of the present tangent off of that investigation is to compare and contrast the character of the various amendments to the Constitution ratified before and after the addition of the seventeenth among their number. In this way, it will be demonstrated that the passage of the 17^th Amendment – which made Senators subject to popular election – altered the probabilities of certain kinds of amendments being either rejected or passed thereafter. Those which were ratified prior to the addition of the 17^th Amendment have generally been either of a mixed character or a legislative character, which is to say that they have enjoyed either a combination of popular and institutional support or primarily institution support. And those which have been ratified since have been mostly popular in nature, owing mainly to the shift in the Senate’s base of power.

    While this distinction has been, and will be, substantially borne out by the facts, it bears repeating the extent to which the 13^th, 14^th, and 15^th amendments defy easy categorization. These reforms did enjoy, it must be said, substantial popular support. Not only did the majority Republicans enjoy the consistent backing of their Northern constituents throughout the period described above, but the formerly enslaves peoples of the Southern states – amounting to many millions in total – were also very much in favor of the initiatives in question. It is also true, however, that while the speed with which these three amendments were drafted, approved, and ratified – from start to finish, a period of less than five years – would seem to indicate a much greater degree than usual of popular and institutional agreement, the specific circumstances of the moment leave ample room for doubt. In 1865, after all, as the text of the 13^th Amendment was being drafted in the House and the Senate, none of the states of the Confederacy were represented in the halls of Congress. This was also substantially the case during the drafting of the 14^th Amendment and was only just the case as the 15^th Amendment was being written. Did these amendments therefore represent the intentions of the majority of the various state governments or were they the products of a wholly unique period of virtual one-party Republican rule? No doubt, the various Senators who were then members of the Republican Party had the backing of their respective legislatures. Popular support, as aforementioned, was widespread in the North for such measures as would either punish the Southern states for having prompted the late war or which would at least take such steps as to prevent a similar conflict in the future. But how much did these factors impact all that the Republicans would ultimately do? Were Republican Senators, in pursing the amendments in question, hewing to the instructions delivered by their legislatures, or were they simply reveling in their unparalleled power and pursuing whatever objectives that they themselves saw fit?

    The aforementioned novelty of the historical circumstances makes these questions very difficult to answer. It would seem fair to say, all things considered, that the 13^th Amendment enjoyed both popular and institutional support. The population of the Northern states, having just suffered an unaccountable tragedy as a result of the desire of their Southern counterparts to protect the institution of slavery, doubtless felt it only proper that this same institution be abolished forthwith. The members of the Northern legislatures very likely felt the same, many of whom had lost friends or family members or risked life and limb themselves. And it is also a documented fact that both the Lincoln Administration and its allies in Congress sought the passage of the 13^th Amendment in large part because they were concerned that the Emancipation Proclamation was unlikely to stand up under the scrutiny of the Supreme Court. But what of the 14^th and the 15^th amendments? While the terms of both of these documents certainly conformed to the stated aspirations of the radical wing of the Republican Party, there was also a degree of political calculation which doubtless helped to carry along those members who were otherwise unconcerned with the furtherance of Black civil rights. Many Republicans, after all, simply wanted to end slavery, and most assuredly had to be talked into guaranteeing formerly enslaved peoples their full rights as American citizens. And what did any of these things matter to the Republicans legislators who controlled the various state assemblies? Or to the inhabitants of the various states in which the Republicans held political power? Many Republicans were diehard abolitionists who believed that racial equality should be the one and only goal of their movement, but just as many were not. If their Senators had refrained from supporting the aforementioned amendments – the substance of which was the enfranchisement of the nation’s Black inhabitants – would these legislators and their constituents have been all that bothered? The tactical considerations discussed above might still have elicited a degree of support for the same, but would it have been enough? The circumstances of the moment, as aforementioned, were so exceedingly unusual that question such as these would seem next to impossible to answer.

    And none of this is to mention the bizarre manner in which the ratification process played out in regard to the 14^th and 15^th amendments. In most instances prior to the adoption of the 17^th Amendment, one would presume to observe a close relationship between how a Senator voted on a given amendment and how the relevant legislature voted during ratification. Having instructed the Senators which it was their duty to appoint to vote a certain way, a state assembly would presumably vote that same way themselves when it came time to ratify the resulting amendment. The means by which the 14^th and 15^th amendments were ratified, however, in large part throw this relationship out the window. Though in both cases the legislatures of certain Southern states were instrumental in securing the ratification of the relevant amendments, none of these same legislatures had any input into the drafting process by way of the Senators that they were otherwise entitled to appoint. The reason for this, obviously, is that the states which went on to form the Confederacy pulled their representatives out of Congress just after hostilities began during the aforementioned Civil War. Notwithstanding the reason, however, the result was a kind of scrambling of the customary dynamic. States with no input into the creation of two extremely consequential amendments were nonetheless required to give their assent to the same or else remain exiled from the halls of federal power indefinitely. Not only must the pressure which this situation exerted upon the relevant states and their inhabitants have been severe in the extreme, but the mere fact of it makes it exceptionally difficult to account for the nature of the support which the states in question ultimately offered.

    Think of it this way. If the states of the Confederacy had been represented in Congress at the time of the drafting of the 13^th, 14^th, and 15^th amendments, it’s safe to say that the legislatures thereof would have given instructions to each of their Senators to oppose all three amendments in no uncertain terms. Being each of them dominated by a class of slave-holding pseudo-aristocrats, it simply wouldn’t have been in the interests of these states to abolish slavery and then enfranchise the resulting freemen. The fact that these same states absented themselves from Congress in 1861 ensured that this exact outcome did not ultimately come to pass, of course, at the same time that it placed them in a very disagreeable position once the Confederacy had definitively collapsed. Unable to provide any input into the drafting of the aforesaid amendments by way of the Senators which they were otherwise entitled to appoint, these same state legislatures were nonetheless expected to ratify the documents in question if they wished to regain their place in the federal union on anything like a reasonable timeline. This was, as mentioned above, tantamount to extortion, and doubtless fundamentally altered the thought-processes of all involved.

    Neither the political class nor the inhabits of the various Southern states surely favored the elimination of slavery followed by the enfranchisement of the local Black population, but what choice did they have under the circumstances? Not only had they just recently been defeated in their attempt to form a breakaway republic dedicated to the perpetuation of the ownership of human beings, but they were now being refused the opportunity to take their constitutionally mandated place within the administration of the federal union. Refusal to cooperate may have satisfied their sense of pride, but the cost was most assuredly tremendous. Consider, by way of example, the fate of those states which refused to ratify the 14^th Amendment and held out on ratifying the 15^th Amendment until a year after its approval by Congress. For the entire period between the middle of 1861 and the beginning of 1870, the states of Texas, Virginia, Mississippi, and Georgia had no representation in Congress whatsoever. That’s almost nine years total during which these four states had no say in the direction of the nation of which they were a part. Bitter though the medicine may have been which they were being directed to swallow, the thought of being thus exiled in perpetuity doubtless overrode the racial animus of the majority of contemporary Southerners.

    This whole period, to be sure, is an exceptionally interesting one in the long, strange history of the American republic. This writer, for one, could not resist talking about for far longer than his readers would doubtless have preferred. But it is also a period from which it is hard to draw conclusion within the context of the present discussion. In the aftermath of a war that kill more than half a million Americans, three amendments were ratified in a period of less than five years. One president was assassinated, another was nearly removed from office, states were refused their place in Congress, and a military occupation was installed in the South. In the midst of all this chaos, it would seem functionally impossible to determine – by way of the previously-established criteria – whether the amendments in question were mainly popular or institutional in their fundamental character. None of them were solely popular; that much would seem fairly clear. But to what extent were they institutional, the product of party priorities or political calculus? And to what degree did they represent the unrestrained animus of a particular faction? Again, it would seem impossible to say with anything resembling certainty. Let this trio of amendments be laid aside, therefore, in the context of the present discussion. And let it be said about them no more than the following short epitaph, that they were the unprecedented products of an unprecedented era.