Modern Moves, Part 2 | America's Written Constitution with Akhil Reed Amar

Welcome back. We're up to the set of amendments in the 1960s. Uh the most recent release set of amendments uh and uh uh the 23rd and 24th amendments um fit very nicely into our general story. The 23rd amendment brings the District of Columbia into the electoral college system. Remember the electoral college system is one in which different states are assigned electoral votes based on their population. Originally pegged uh connected to the three-fifths clause, but with the end of slavery, the three-fifths clause is dropped away. But the electoral college system is one in which states um are basically the the the fundamental units for determining presidential elections. And the 23rd amendment says, well, we're going to allow DC to be part of that electoral college system. It's not going to be a state for the House of Representatives. It's not going to be a state for the Senate, but we are going to allow it to to have a few electoral votes as if it were a state in in effect. Um, and the 24th amendment is going to end uh prohibits um poll taxes uh in states uh being used um to prevent people from voting in federal elections and uh uh for the for example for the Senate, for the House of Representatives, for the presidency. the Supreme Court is going to take um uh in the same era, the 1960s, some of the deep animating principles underlying that 24th amendment, and actually say, gee, not only should there be no pole taxes for federal elections, um there should be no pole tax disfranchisement for state elections either. So, how you might ask, does that fit into the general story thus far? Remember, the general story thus far has been a story of democracy, national security, and slavery slash race. So, let's take the District of Columbia. Here's one thing you need to understand about DC. There's a very substantial proportion of non-whites who live in DC, of Africanameans. That's true today. It has been true for the last 150 years at least. Uh remember uh early on um the district of before Abraham Lincoln's presidency, the District of Colombia is actually a slaveolding jurisdiction. It's um it's part of uh uh it's on the border between um Virginia and Maryland, both of which were slave states um uh uh when the Civil War broke out. So there are a lot of black people who live in DC. And when you bring DC into the electoral college system, you are advancing democracy uh and actually the cause of of racial justice. And democracy is itself part of the process. It's not just the result of DC's being brought in, but it's part of the process. Um we've been talking about uh party competition, presidential parties. Um, both parties support, the Republicans and the Democrats support this move to bring DC into the electoral college fold. And that's because in the middle of the 20th century, both the Republican and the Democrat party are um vying for uh the allegiance of AfricanAmericans. Actually, before FDR, blacks very reliably vote Republican party Lincoln before 1932. After 1972, after sort of um uh um the uh um African-Americans overwhelmingly vote Democrat, um but between 1932 and 1972, so the black vote is kind of up for grabs. Both political parties are are trying to get it. blacks are a swing democratic uh a swing uh demographic, excuse me, constituency, maybe like Hispanics are at the beginning of the the the 21st century. So, um FDR has won a bunch of black votes and Truman um is uh uh uh has desegregated the armed forces and and and when he runs for election in his own right, it's the black vote that's the margin of victory. um had um uh Dwey, Thomas Dwey, who ran against him, actually won the African-American vote, Dwey would indeed have beaten Truman and won the presidential election. Eisenhower was trying to win back the black vote and um and um both um uh uh Nixon and Kennedy in um 1960 are vying for for the black vote. and DC is kind of part of of uh that whole conversation about African-Americans uh more generally. And uh the 23rd amendment is proposed under Ike and ratified under JFK and um I think it's a nice symbol of um some of these issues. Now, how does national security factor into this? So, we've talked about democracy and we've talked about race. um national security figures in in part because there's not just a domestic audience when it comes to race relations in America, but an international audience. We're in the middle of a cold war and the Soviet Union is having a propaganda field day um in Africa and Asia. That's that's the battlefield of the Cold War. We're trying to win um a cold war for the and we're trying to win the hearts and minds of brownkinned and black skin and yellowkinned people in Africa and Asia and South America. And the Soviet Union is saying, "Oh, the United States doesn't practice what it preaches. It has segregation. It has discrimination." Look, it's national capital has a bunch of black people and they don't even get to vote fairly in in presidential elections. and and the 23rd amendment is is, you know, trying to actually say to the rest of the world, no, actually we um are trying to solve our our racial problems. Now, you might say, well, DC was never um in the electoral college system. It's not about race. It's just the constitution has different rules for territories. And that made a certain amount of sense at the founding. Um DC wasn't part of the electoral college system, but neither were the territories. And there were a lot of territories and a lot of people lived in the territories. But as the territories gradually became states admitted on equal footing, remember the story that we told thus far, they states, the new states, the territories, the west wasn't being treated as a permanent western colony of the east coast. As those territories became states, it seemed increasingly anomalous that DC was left behind. So DC, you know, was left out of the system even as the territories became states. And at the time that that anomaly became increasingly clear when the west the the the the frontier ended and and and Wyoming and Arizona and the other uh western states are finally coming in. DC status seemed increasingly anomalous and people started to notice a lot of black people are living there now and um uh so so DC being brought into the um the fold is is part of a larger geostrategic story. Remember, the same time that this is happening, Hawaii is becoming a state, the 50th state, Hawaii 50. Alaska is becoming the 49th state. Um, uh, projecting beyond the continental lower 48, the contiguous lower 48. And there's a national security story there. Um, we want to project power um, after World War II into the Pacific. Pearl Harbor, you know, was a a scene of military disaster, but we have to project power into the Pacific Rim toward um Japan. Um uh Alaska borders on Siberia, the Soviet Union. We want listening posts uh close to the Soviet Union. Remember also Alaska has a pretty substantial proportion of non-whites, alutes, um and native um Americans. Uh Hawaii has a very large percentage of of non-whites. So, um, Alaska and Hawaii and DC are all part of a story of the Cold War of race, um, but also of increasing democracy. This is also the era, the 1960s, that's going to give us an immigration reform act that's going to make it possible for people from Africa and Asia and South America increasingly to come to the United States. And this is part of a Cold War idea. We want to be open to the talent of of all the rest of the world. Um and and DC is part of that that larger story. Um now DC is still not quite given full treatment. It's not in the House of Representatives. It's um it's not uh doesn't have two senators. It's not admitted as a state. Um, and I'm not predicting necessarily that that will happen uh soon because that the window of special opportunity I think um closed to some extent um in the middle of the 20th century because remember what I said blacks are politically imp they're a swing constituency between 1932 and 1972 and they make a lot of progress in part because both political parties are vying for them much as earlier political parties didn't want to offend women and so at a certain point both basically said oh we're for women suffrage well Now, um, when blacks are in play, um, both parties are are wooing them. But after 1972, blacks are quite reliably members of the Democratic, uh, coalition and not at all clear that Republicans would support DC statehood, for example, because that's going to mean two more Democrat senators, um, another one, possibly two members of the House of Representatives who would be Democrats. So, not at all clear that Republicans would support um more stuff for DC today, constitutional or um um uh uh um uh tweaks or or full statehood. Not at all clear that the today's Republican party would support that. But the Republican party of the middle 20th century, the party of of Eisenhower did very much support that. And remember, you know, it's an Eisenhower appointee Earl Warren who who hands down Brown versus Board of Education. Um and in fact Eisenhower's justice department supports Brown versus Board of Education. And so um so in this period in the middle of the 20th century, both Republicans and Democrats are actually supporting civil rights um uh and and and and voting rights. And that takes us very naturally to the next amendment, which is about voting rights. And it's an amendment that says states shouldn't um have pole taxes that prevent uh people some because they can't pay those taxes from voting in federal elections. Remember, under the original constitution, you get to vote for the House of Representatives if you can vote for your state legislature. So, state law sort of defines in the first instance who's eligible to vote even for for Congress. Remember, states regulate how the the presidential electors are to be selected. Um it's a state definfined electorate that that picks senators um under the 17th amendment, the direct election amendment. And 24th amendment said, well, for federal elections, the inability or the unwillingness to pay a pole tax should never be a basis for disenfranchisement. You should be allowed to vote whether you pay a tax or not. This is a grand egalitarian Republican idea or small R Republican, small d Democrat. And both the Republican and the Democrat party support this amendment. Um, and the Supreme Court, a Supreme Court that's led by a Republican chief justice, but has a majority of New Deal Democrat appointees on it, is going to go one step further and say, "Not only should there be no pole tax disenfranchisement for state for federal elections. We shouldn't have it for state elections either." Or Republic, a Republican government, small R, should be a government of the people. Race Publa, the people's thing. um not not the properties thing, not the not it's not about money or or taxes. It's it's about um the people deciding um whom they want to represent them. And so um these amendments um uh uh the 23rd and the 24th um are are powerful extensions of this democracy idea that we saw at the founding that carried forward through the reconstruction that was further elaborated by the for example the direct election of senators in the progressive era. So that that that general story continues with these um amendments. And at the very same time that these amendments are being proposed, Republicans and Democrats in the middle of uh the 1960s are going to get together and pass an epic voting rights act that further reinforces the idea of federal protection of voting rights, implementing the grand themes of the 14th Amendment and the 15th Amendment that had to some extent laid dormant. Because here's one thing that dirty the dirty little secret that I didn't mention about pole taxes. Pole taxes are basically used in the former Confederacy. Um uh when in the 1960s those only states that really have pole tax disenfranchisement and they probably disenfranchised blacks disproportionately and and and this amendment and the supreme accompanying Supreme Court cases extending this amendment uh understood all of that. So definitely a story of race and the and the voting rights act of 1965 following on the heels of the Civil Rights Act of 1964 act supported by Republicans as well as Democrats party of Lincoln Republicans as well as Democrats that are trying to repudiate new Democrats. Uh the legacy of the old Democratic party which is about slavery and segregation. um this this coalition that gives you the Civil Rights Act of 64, the Voting Rights Act of 65 is doing so again in part with attention to a world stage trying to persuade people of goodwill in Africa and Asia and South America. that America actually um is an open society that really does practice what it preaches, which is after the 13th, 14th, and 15th amendments, equality, which is after the direct election of senators, an idea of of equal voting and one person uh one vote. And indeed, in this era, the Supreme Court is going to give us some landmark cases, which we're going to talk about much later in in this lecture series on the idea of one person uh one vote. 25th Amendment. It's also about um war, in particular, a cold war. After um President Kennedy's assassination, Americans realize with sort of blinding clarity that the rules of presidential succession need to be modified. um uh god forbid had President Kennedy um uh been in a coma um lingered for a long period of time um uh uh um uh maybe in a persistive vegetative stage something like that. Um it was not entirely clear how the a vice president could pronounce a president sort of unable disabled to discharge the office and put himself forward and and in a cold war with um a nuclear weaponry uh minutes can matter. I mean there always has to be someone ready to take charge and the 20 and the original constitution didn't have a very uh elaborate system specifying who should declare a president disabled. It also said that if a president did die and the vice president um uh became president came forward the constitution didn't provide a mechanism a backup for creating a new vice presidency. So for 40 years of American history before the 25th amendment, America basically didn't have a vice presidency because the vice president had died and there was no way of filling that vacancy or the vice president had resigned and there's no way of filling that vacancy or president had died and the or or resigned um uh become disabled and the vice president had moved up into the presidency. Again, there's no way to fill the vacancy. The 25th Amendment plugs some of those gaps. And it's in part motivated by Cold War reality that minutes can count, even seconds can count, and there has to be a person capable of making decisive decisions at every moment. And the 25th Amendment says, look, if the president dies, the vice president actually officially becomes president. Made that clear. There was maybe an ambiguity about that. That had been our tradition, but the 25th amendment makes that very clear. If a vice president becomes president because the president has died or um resigned, we can that incoming president can fill the vice presidential vacancy, can nominate someone basically to um to be the new vice president subject to special congressional confirmation process. And if a sitting president um is uh going to undergo some planned surgery or something that like that, no, he's going to be out of action for a while. although he's going to be temporarily disabled, he can um provide the the 25th amendment provides a mechanism by which he can basically officially designate the vice president as the person in charge and then when he recovers um take that back um very easily allowing seamless handoffs of power back and forth between president, vice president. It's a constitutionalization of the tag team idea, the ticket idea that the president and vice president are going to work very closely together. Presidents are going to be picking their vice presidents under the 25th amendment as um as Richard Nixon will handpick Gerald Ford when the vice presidency becomes vacant um when uh Spiro Agnar resigns and Ford in turn will pick Rockefeller um when he um Gerald Ford becomes president. This is a kind of textualization of the idea that the political parties, what's emerging as a tradition that the presidential nominee handpicks his running mate. That wasn't so clear for much of American history, but it's it's more clear today in political party practice. And in the text, there's this close working relationship between presidents and vice presidents. Presidents basically pick their running mates. Their running mates often succeed them. They're their wingmen. um and they can hand off power back and forth in cases of um uh of an anticipated disabilities, let's say a planned surgery or something like that. Um and um one of the big areas of vulnerability, if all of this is true, we're going to talk in later lectures about whether the other rules of presidential succession, the statutory rules make sense. Does it make sense um if you really want presidents to hand over things very um easily to the next in charge? Does it make sense that after the vice president, the next person in the statute is the speaker of the house who might be a member of the other party rather than say the secretary of state who'd be part of of the same presidential administration. In other words, um, does it make sense if something happened to both Ronald Reagan and George Herbert Walker Bush at the same time? You know, would it make sense to have the if something happened to these two Republicans, have Democrat Tip O'Neal take over rather than a Republican Secretary of State? If something happened to um Obama and Biden, would it make sense for Boehner to take over rather than say John Kerry? That's something we're going to come back to in later lectures. The 26th amendment um which is also um is also a a product, it seems to me, of um our great themes of of of race, democracy, and national security. The 26th amendment says that 18 year olds get to vote. Um uh and um they have a constitutional right to to vote not to be discriminated on grounds of of youth. Uh and um couple of things. One, um uh young uh adults are actually in America in recent history have been more likely demographically to be non-white. So, so this is actually um an amendment that brings more non-whites into the process proportionally, just as getting rid of pole taxes, has a racial um um effect that's racially inclusionary. Um it's an expansion of democracy. Both political parties actually are were in favor of it. So both parties were sort of competing for the young American vote in the way that they earlier competed for um the woman's vote or were competing for the the black vote in the middle of the 20th century are now competing for the Hispanic vote swing constituencies. And what's the larger story? Obviously Vietnam. If 18-year-olds are old enough to fight and die in Vietnam to be drafted even against their will to find out and they're old enough to vote on whether we should be in that war in the first place. So thought Barry Goldwater, Mr. Republican on the right. Um, and you know, Richard Nixon, a Republican president, and Democrats on the left. It's a story uh that we've seen over and over again, connections between national security and democracy. If you're old enough to fight, you're old enough to vote. Just as at the founding, if unpropy people could fight in the American Revolution, and they did, as you know, loyal militia men and and sailors at places like Lexington and Conquered and Bunkers Hill and Washington's Army and and on the high seas, if unpropy people were, you know, um uh we were willing to take them and and have them fight for the patriot cause, they should be allowed to participate and vote in this new system. And after the Civil War, if black men could risk their lives and limbs um for the Union, they should be allowed to to vote. Um and and that's the 15th Amendment. And we we saw that dramatic picture. Um if women are really part of the um u the economic um uh support structure for um our uh our wars as they were in World War I, um they should be allowed to to be equal voters. young adults, if they are fighting and dying in Vietnam, risking their lives and limbs, they should be allowed to vote on that thing, on that war and everything else. So, um, the 27th amendment, I'm not going to say a lot about. It was proposed actually in the founding era and it gets ratified, you know, 200 years later. Um, it's an amendment that says that congressional pay changes, especially congressional pay increases, can't go into effect until there's been a an intervening election. Um, so it's a pro-democracy amendment, basically saying certain things should shouldn't happen until the people weigh in. It's a smallish amendment, a kind of tweak. It's kind of interesting just because it was originally proposed by James Madison, passed the House by twothirds, the Senate by twothirds, not enough states ratified, but eventually um 200 years later, enough states did to put it over the top. Um the story is told in more detail in the book, what I want to end um uh my lecture today uh with um before I talk about this picture. Remember, we always talk about pictures is the 28th amendment. You say what? 28th amendment. What 28th amendment exactly our constitution that the end of the constitution in my view isn't the 27th amendment. It's the vast creative white space after the 27th amendment. Remember we keep adding amendments um in textual order. The constitution always has a kind of unfinished look to it. We don't word process it and stick and and and rewrite the thing start to finish so it looks complete. It's always looks kind of incomplete. Why 27 rather than 28 or 29 or 37? So the most interesting question is what's the next amendment going to look like? And the amendment after that, the amendment after that, that is a question for for our generation and our posterity. It's a question, my fellow citizens, for you to ponder. Um what amendment would fit the story that we've been telling that would would be a suit a suitable next chapter to this epic unfolding American saga? And with that, I think we come to kind of where the written constitution ends and the unwritten begins. One idea of an unwritten constitution is the constitution still to be written, the amendments of the future. Um, and that and the 28th amendment is, I think, one way to really think about what is this story thus far? Um, what has been done? um what remains to be done that would be fitting um as part of this extraordinarily intergenerational project because remember the constitution is not just about the founding. It's about the amendments as well and those amendments are on you know that that possibility still continues. Earlier generations made amends for the sins of the fathers. They're pro-slavery aspects for example the original constitution and this generation can do the same. It's up to us. We will talk about that a lot over the second half of the course when we talk actually in rather great detail about the unwritten constitution. Um uh but um for now I just want to close this lecture um with this picture. This is a picture of the March on Washington in 1963. And note how it's a continuation really of the story we've told thus far. We began chapter one with the preamble. We the people, ordinary people getting to decide how they and their posterity would be governed, getting to vote, getting to deliberate, discuss, participate. Extraordinary. Um, and then we had images of freedom of speech and debate in in the early congresses. Henry Clay speaking with Daniel Webster and John C. Calhoun and and the gallery listening. And then we tal we talked about how in the Civil War um uh black men risked their lives and limbs for the Union and in the process won the full rights of political participation. Not just freedom of the 13th amendment but civil equality in the 14th and voting rights in the 15th. And then we saw in the last chapter um women taking to the streets and demanding full and equal justice, demanding suffrage rights. Um and and the story continues here with another group of Americans taking to the streets to demand freedom um and um an end to bias. Um equal rights now, integrated schools, now an end to police brutality now. Um, some of the demands you see they they're almost ripped from the headlines. Some of the same issues are the issues of of 2013. Um, I'm actually giving this lecture um uh uh uh at at a time um uh of the 50th anniversary really of the the March on Washington. This was 1963, 50 years ago. Um uh and uh um and that story ordinary people taking to the streets appealing to their fellow citizens. This is where Martin King gives that famous I have a dream speech. This is the day which he he does that. And both Republicans and Democrats are marching blacks and whites, men and women, Jews and Gentiles, gays and straits. Not as many openly gay, but some of the people actually in charge of this march were in fact um gay. We now know um and um they spoke, Americans listened. The result of of this taking to the streets will be epic constitutional achievements. Some statutory, some in the case law like the Civil Rights of Act of 64, the Voting Rights Act of 1965, landmark Warren Court opinions um on just some of these issues. We will talk a lot more about some of that in the second half of this course as we explore America's unwritten constitution. So I hope to see you for that. Stay tuned. [Music]