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Changes in the Legislative Branch

Changes in the Legislative Branch

Congress is the legislative branch of the federal government, the branch that makes the laws. The men who wrote the Constitution at a federal convention in summer 1787 created Congress to promote American commerce (business), protect property, and provide a strong military. (See chapter 3, "Constitutional Role of the Legislative Branch.") According to Howard Zinn in A People's History of the United States, by protecting property and promoting commerce, the Constitution did "enough for small property owners, for middle-income mechanics [skilled workers] and farmers, to build a broad base of support."

Changes in the powers of Congress since 1787 have had two main themes. One is the expansion of power through the interpretation of Congress's role under the Constitution. The other involves efforts by the American people to drive democracy, which means government of, by, and for all people, into the Constitution.

The Bill of Rights

A bill of rights is a statement of the basic rights that citizens have in a society. When the Constitutional Convention began in May 1787, each of the thirteen American states had some kind of bill of rights in its constitution. The idea of putting a bill of rights into the federal constitution, however, did not come up until near the end of the convention in September. Delegates George Mason (1725–1792) of Virginia and Elbridge Gerry (1744–1814) of Massachusetts supported the idea, but voting by states, the delegates defeated it ten votes to zero.

After finishing the Constitution, the convention presented it to Congress, which was America's governing body under the Articles of Confederation. Congress presented the Constitution to the states, whose representatives faced the question of whether to ratify, or adopt, it as the new framework for American government. This issue divided the white men of the country into two main groups. The Federalists, led by New York delegate Alexander Hamilton (1757–1804) and Virginia delegate James Madison (1751–1836), favored ratification. The Federalists called their opponents, those who were against ratification, Antifederalists.

Generally speaking, Federalists favored a strong national government, while Antifederalists wanted strong state governments. The Antifederalists feared that the Constitution would weaken state governments, possibly bringing statehood to an end. Men who lived near the Atlantic coast, where commerce was important, were mostly Federalists. Men who lived inside the country, on farms and the frontier, were mostly Antifederalists. (Women generally could not participate in political affairs then, so their views are not well known.)

To vote on whether to ratify the Constitution, states had to form their own conventions. They did so by having the people who could vote, mostly white men who owned a certain amount of property, elect delegates (representatives). State voting districts at the time unfairly gave greater representation to coastal areas than to the interior farms and frontiers. The combination of property requirements for voting and unfair representation of the coastal areas gave the Federalists a strong voice in the state conventions. According to Alfred H. Kelly and Winfred A. Harbison in The American Constitution, "Probably not more than three per cent of the male population actually balloted [voted] upon the choice of delegates to the various state conventions."

Despite their advantage, the Federalists were not assured of victory in the struggle for ratification. According to the Constitution, nine state conventions had to approve it for it to become law between those states. Seven states ratified the Constitution easily, but the vote was close in Massachusetts, New Hampshire, New York, and Virginia. (North Carolina and Rhode Island did not ratify the Constitution until after the new federal government was in operation.)

The absence of a bill of rights in the proposed Constitution led to much debate. The Federalists tried to convince the Antifederalists that a bill of rights was unnecessary because the federal government's power was limited under the Constitution. They also said that citizens' rights were inferred in the Constitution, meaning they were understood to be there without specifically being mentioned.

Antifederalists disagreed. In a letter to James Madison in December 1787 (as reprinted in The Founders' Constitution), fellow Virginia politician Thomas Jefferson (1743–1826) said, "A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just [fair] government should refuse, or rest on inference."

The Federalists proposed a compromise. They promised that if the Antifederalists would vote for ratification, they would support amendment of the Constitution afterwards to include a bill of rights. This worked, and by the end of June 1788, ten states had ratified the Constitution. In their ratifying documents, Massachusetts and other states included a description of the rights they wanted to see in a federal bill of rights.

In 1789, Congressman James Madison of Virginia took responsibility for turning the states' suggestions into proposed constitutional amendments. His goal, as quoted in The Founders' Constitution, was "to satisfy the public mind that their liberties will be perpetual [ongoing], and this without endangering any part of the constitution." Madison ultimately crafted twelve amendments, and by 1791 the states had ratified ten. These first ten amendments came to be called the Bill of Rights. Many of them contain limitations on the power of Congress.

The First Amendment

The First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging [lessening] the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition to Government for a redress [remedy] of grievances."

This Amendment contains some of America's most cherished freedoms, including the freedoms of religion and speech. The freedom of religion has come to mean that Americans can worship or not worship as they choose. In 1789, however, the amendment was designed to keep Congress out of religion in order to leave religion to the states. The Massachusetts Constitution of 1780, for example, gave the state legislature power to require people to attend public education on God and morality. The Virginia Constitution, in contrast, protected religious freedom, at least for Christians.

Freedom of speech is the right to speak and write without restriction. The freedom, however, is not absolute. According to the U.S. Supreme Court, the freedom of speech prevents the government from banning speech or writings. The government may, however, punish a person for speech or writings that injure another person or the government. For example, the government cannot stop a person from saying or printing something false about another person. But if the person makes the statement knowing it is false, the injured person can sue for damages. The person who made the false statement cannot escape responsibility by saying he or she was simply exercising the freedom of speech.

Congress, however, is allowed to regulate the time, place, and manner of speech, as long as its regulation is reasonable. Congress can also punish speech that it considers harmful. (See sidebar, "The Sedition Act of 1798 and the Espionage Act of 1917.") Some Americans believe Congress should be able to punish harmful speech. Others believe that the power to punish is the power to prevent speech in the first place, and that what is harmful differs from person to person.

The Second Amendment

The Second Amendment says, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The reason for this Amendment was to make sure people could have weapons for protection. Americans wanted to protect themselves not only from attack, but also from injustice by an unfair government. They even wanted the ability to overthrow the government if necessary, as the American colonists had overthrown Great Britain in the American Revolution (1775–83).

The Sedition Act of 1798 and the Espionage Act of 1917

The First Amendment says Congress shall not abridge, or lessen, the freedom of speech. The United States adopted the amendment in 1791. Many Americans thought it would prevent Congress from punishing them for freely speaking or publishing their opinions about the government. The Sedition Act of 1798 destroyed this notion.

In 1798, John Adams (1735–1826) was president. Adams and most members of Congress were Federalists, a political party that wanted a strong national government. The French Revolution (1787–99) and rebellions in Ireland made the Federalists fearful of antigovernment speech in the United States, especially with growing numbers of French and Irish immigrants in America. Federalists were also preparing for war with France because France was interfering with American merchant vessels on the high seas.

To discourage antigovernment speech, Congress passed and Adams signed the Sedition Act of 1798. According to Howard Zinn in A People's History of the United States, "The Sedition Act made it a crime to say or write anything 'false, scandalous and malicious' against the government, Congress, or the President, with intent to defame them, bring them into disrepute, or excite popular hatreds against them."

Ten Americans were convicted and imprisoned under the Sedition Act. Sitting on federal courts of appeals, every member of the U.S. Supreme Court said the Sedition Act did not violate the Constitution. The First Amendment, they said, only prevents Congress from stopping people from speaking in the first place. It does not prevent Congress from punishing people for what they say if Congress thinks their speech is harmful.

The men convicted and imprisoned under the Sedition Act were mostly journalists who belonged to the Republican Party (historically known as the Democratic-Republican Party to differentiate it from the modern Republican Party). The Republican Party was the largest rival of the Federalist Party. Republicans generally supported strong state governments and limited power in the federal government. Republican Thomas Jefferson, who was vice president under Adams, secretly helped his home state of Virginia draft a resolution for protesting against the Sedition Act. After 1800, when Jefferson won election to the presidency and Republicans gained control of Congress, Congress repealed the Sedition Act.

In 1917, during World War I (1914–18), Congress passed the Espionage Act. The Act makes it illegal, when the United States is at war, to interfere with the enlistment of soldiers in military service.

In June 1918, a labor leader named Eugene Debs (1855–1926), who later ran for president as the Socialist Party's nominee, gave an antiwar speech outside a prison where three men were being held for opposing the military draft. According to Zinn, Debs said:

They tell us we live in a great free republic; that our institutions are democratic; that we are a free and self-governing people. . . . Wars throughout history have been waged for conquest and plunder. . . . And that is war in a nutshell. The master [wealthy] class has always declared the wars; the subject [poor] class has always fought the battles. . . .

Debs was convicted under the Espionage Act because it was deemed that his speech might prevent young people from enlisting in the military. He spent three years in prison until he was pardoned by President Warren G. Harding (1865–1923; served 1921–23) and released in 1921.

Today the Second Amendment is primarily used to defend the right to have weapons for self-protection and for hunting and sportsmanship. Overthrowing the federal government with guns and rifles is unlikely when the government is armed with nuclear weapons. Despite the original purpose of the Second Amendment, the federal government is unlikely to allow people to have nuclear weapons for overthrowing the government if necessary, and many Americans would agree with such a restriction.

The Eighth Amendment

The Eighth Amendment says, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This Amendment limits the punishment Congress can impose in its criminal laws.

The Eighth Amendment is part of the national debate over capital punishment, or the death penalty. Many people think the death penalty is cruel, is used most often to execute minorities, and sometimes results in the execution of innocent people. The U.S. Supreme Court, however, has ruled that the death penalty does not violate the Eighth Amendment because the death penalty was widely accepted when America adopted the Bill of Rights in 1791 and has continued to be acceptable to most Americans. According to a Harris Poll in January 2004, more than two-thirds of Americans support the death penalty. Some people who support the death penalty believe it discourages people from committing murder. Whether or not this is true, some people also believe death is a just and fair punishment for killing another person.

The Tenth Amendment

The Tenth Amendment says that any power not specifically given to the federal government is reserved for the state governments and for the people of the nation. Adoption of this amendment increased the importance of defining Congress's specific powers under the Constitution. Since 1789, when the federal government began to operate under the Constitution, Congress's powers have grown tremendously, especially under the Necessary and Proper Clause and the Interstate Commerce Clause of the Constitution.

The Necessary and Proper Clause: McCulloch v. Maryland

Article I, Section 8, of the Constitution gives Congress the general power "to make all laws which shall be necessary and proper for carrying into execution" the specific powers of Congress and the federal government. This is called the Necessary and Proper Clause.

The Necessary and Proper Clause was a source of great controversy during ratification of the Constitution. Antifederalists feared it would give Congress unlimited authority to do anything it wanted to do. They felt that listing the specific powers of Congress should be enough.

Federalist Alexander Hamilton responded to these concerns in an interesting way. Writing in 1788, he said that in reality, the Necessary and Proper Clause did not add anything to the Constitution. It only clarified that when Congress has a specific power, it can do anything it needs to do to exercise that power. Hamilton said, however, that it was important to include the clause in the Constitution so that people would not try to restrict Congress's specific powers.

Interpretation of the Necessary and Proper Clause became important in 1791, in the middle of President George Washington's (1732–1799; served 1789–97) first term in office. Alexander Hamilton was then secretary of the treasury under Washington. The secretary of the treasury is the head of the Department of the Treasury, which is the office in the executive branch that governs the nation's monetary policies.

According to Kelly and Harbison, Hamilton "had a strong conviction that control of government should be lodged in the hands of the manufacturing, commercial, and landed aristocracies. Hamilton therefore favored an efficient, coercive, and highly centralized state [national government], which would foster commerce, manufacturing, and capitalistic development." By coercive, Kelly and Harbison meant that Hamilton wanted the federal government to have power to impose national economic plans on the states. To reach this goal, Hamilton spent much time from 1790 to 1791 devising a financial, or monetary, plan for the federal government. One of Hamilton's proposals was to ask Congress to open a national bank.

Controversy erupted in the federal government. Nowhere did the Constitution specifically give Congress the power to open a bank. President Washington asked Hamilton and Secretary of State Thomas Jefferson to give him written opinions on whether Congress could open a bank under any of its general powers, including its power under the Necessary and Proper Clause.

Jefferson submitted his opinion on February 15, 1791. He said Congress lacked the power to open a national bank. Jefferson focused on the word "necessary" in the Necessary and Proper Clause. He argued that Congress could exercise its specific powers, such as imposing taxes, borrowing money, paying national debts, and regulating commerce, without opening a national bank. A national bank, therefore, was not necessary.

Hamilton responded to Jefferson eight days later. He wrote that Jefferson's understanding of the word "necessary" was too narrow. Hamilton said the word necessary could mean just "useful." Since a national bank would be useful for exercising Congress's specific powers, it was permitted by the Constitution. Hamilton won the argument, and Congress opened the Bank of the United States with branches throughout the country.

The controversy, however, was not over. Thanks to a poor economy and conflict with state banks, the Bank of the United States became unpopular in areas in the south and west where commerce was not as important as in the north and east. Conflicts involved efforts by the Bank of the United States to restrict the volume of loans made by private banks chartered by the states. Some people saw such regulation as a violation of states' rights. Eventually, some states in these regions tried to get rid of the national bank's branches in their borders, either by outlawing them or by taxing them heavily. Maryland chose the latter strategy, laying a heavy tax on the Baltimore branch in 1818.

When the Baltimore branch violated the tax law, Maryland sued the branch manager, James W. McCulloch, in county court. The case, called McCulloch v. Maryland, went all the way to the U.S. Supreme Court. There, the Court had to decide whether Congress had the power to open a national bank.

On March 6, 1819, Chief Justice John Marshall (1755–1835) announced the Court's decision. He said Congress had implied power under the Necessary and Proper Clause to open a national bank, even though it did not have specific power to do so. Marshall said that "necessary and proper" did not mean "absolutely indispensable." Instead, when Congress has a specific power under the Constitution, the Necessary and Proper Clause lets it do anything that is "appropriate" for exercising that power. Marshall's written decision echoed Hamilton's opinion to Washington of twenty-eight years earlier. Every associate justice on the Supreme Court agreed with the decision, which strengthened Congress's powers of legislation.

The Interstate Commerce Clause

Commerce means the transportation and sale of goods and services. Interstate commerce is commerce between two or more states, and foreign commerce is commerce with foreign states or nations. When the constitutional convention met in 1787, Congress did not have the power to regulate interstate or foreign commerce. Instead, the thirteen American states each had their own commercial laws. To raise money, states often passed laws to tax goods brought from other states. At the same time, Great Britain passed laws banning many American products from that empire, which hurt producers of those goods in America.

The men who wrote the Constitution wanted to give Congress the power to deal with such situations. They did so with the Commerce Clause in Article I, Section 8: "The Congress shall have power . . . to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

The portion of this clause relating to commerce among the several states is called the Interstate Commerce Clause. For the first century after the foundation of the new government in 1789, Congress used this power mostly to prevent the states from restricting interstate commerce.

By the late 1800s, commerce in America had grown greatly thanks to the Industrial Revolution. This was a period in which machines, steam power, electricity, and oil replaced human skill and animal power in the production of goods. The industrial boom led to greater regulation of commerce by Congress, which resulted in an increase in the number of cases requiring the U.S. Supreme Court to interpret Congress's power under the Interstate Commerce Clause.

In an 1824 case called Gibbons v. Ogden, Chief Justice Marshall said the Interstate Commerce Clause gave Congress complete power over commerce that "concerns more than one state," but probably not over commerce that concerns "the completely interior traffic of a state."

In the first half of the 1900s, the U.S. Supreme Court changed this interpretation, greatly expanding Congress's power under the Interstate Commerce Clause. The Court said that if a particular business activity can have a substantial effect on interstate commerce, Congress may regulate it, even if the activity itself is not part of interstate commerce. This meant, for example, that Congress could regulate the price of train trips inside a state (Houston, E. & W. Tex. Ry. v. United States), or the production of wheat that would be used entirely on the producing farm instead of sold in interstate commerce (Wickard v. Filburn).

Congress's power under this expanded interpretation of the Interstate Commerce Clause has allowed it to pass laws that do not deal strictly with commerce. Environmental laws, such as the Clean Air Act, are based on the power to regulate businesses in interstate commerce. Most federal criminal laws are based upon either the effect a crime has on interstate commerce, or upon the use of tools or "instrumentalities" of interstate commerce, such as the post offices, telephone companies, and interstate highways, for committing a crime.

Civil rights legislation

Even civil rights legislation is based on the Interstate Commerce Clause. Civil rights are the basic rights a citizen has in society. Some civil rights laws are written to prevent discrimination against, or unfair treatment of, people on the basis of their race, color, gender, or other features.

Congress first tried to prevent race discrimination after the states in 1868 adopted the Fourteenth Amendment, which made discrimination by the states illegal. Congress used the Fourteenth Amendment to pass the Civil Rights Act of 1875. The Act made discrimination illegal in places of public accommodation, such as inns and theaters. The U.S. Supreme Court, however, struck down the Act in 1883. It said the Fourteenth Amendment only prohibited discrimination by states, not by private persons in their businesses.

In 1964, Congress passed the Civil Rights Act. This Act also made discrimination illegal in public places, such as motels and restaurants. Congress, however, said it passed the Act using its power under the Interstate Commerce Clause. That year in Heart of Atlanta Motel v. United States and Katzenbach v. McClung, the U.S. Supreme Court ruled that the Civil Rights Act of 1964 was lawful under the Constitution. It said discrimination at motels and restaurants affects interstate commerce, because motels give rooms to people who travel from state to state, and restaurants serve food that comes from other states. So Congress can outlaw such private discrimination under its power to regulate interstate commerce, but not under the equal rights provisions of the Fourteenth Amendment.

Two justices, William O. Douglas (1898–1980) and Arthur J. Goldberg (1908–1990), expressed some disappointment with the Court's decisions. They agreed that the Civil Rights Act of 1964 was lawful. But they felt it should be lawful as an exercise of congressional power under the Fourteenth Amendment, not just under the Interstate Commerce Clause. Justice Goldberg expressed his belief that "the Fourteenth Amendment guarantees to all Americans the constitutional right 'to be treated as equal members of the community with respect to public accommodations. . . ."'

Income tax: the Sixteenth Amendment

Income tax is a tax collected out of the money that a person or business earns in a year. Income tax has become the federal government's primary source of funds for its operations. When the government began to operate under the Constitution in 1789, however, it did not collect any income tax. Into the early 1900s, its largest source of tax revenue was a tax on goods imported to America from other countries.

During the American Civil War (1861–65), Congress passed an income tax to help pay for the war. The tax was unpopular and so it was allowed to expire in 1872. In 1881, the U.S. Supreme Court had to decide a case that challenged whether the income tax had been lawful under the Constitution. The Court decided that the tax had been lawful under Article I, Section 8, of the Constitution, which gives Congress the power "to lay and collect taxes."

In 1894, Congress was controlled by the Democratic Party, a political party that tended to find support in the laborers and less wealthy classes of society. Because the economy was not doing well, people were not buying as many imported goods as they had in good times, so the federal government was not collecting as much money as it needed from its import taxes. At the same time, the Industrial Revolution had produced a class of Americans getting wealthy on money earned from various industries.

These factors led Congress to enact an income tax as part of the Wilson-Gorman Tariff Act of 1894. The law imposed a tax of 2 percent on a person's income. It also contained an exemption so that people who earned less than $4,000 a year would not have to pay any income tax.

The following year, the U.S. Supreme Court heard two cases challenging the income tax portions of the Act. Lawyers for the challenging party argued that the income tax violated the Constitution. Under Article I, Section 9, Congress is forbidden to pass direct taxes that are not in proportion to the population of the states. The delegates to the Constitutional Convention never defined what such a tax would be, but the lawyers arguing the case before the Supreme Court, Joseph Choate (1832–1917) and George Edmunds (1828–1919), said an income tax on rents earned from land violated the restriction. According to The American Constitution, Edmunds also argued that allowing poor people to use Congress to tax rich people would lead to "communism, anarchy, and then, the ever following despotism [tyranny]."

Going against its decision from 1881, the U.S. Supreme Court ruled that the entire income tax portion of the Act violated the Constitution. Justice Stephen J. Field (1816–1899) wrote an opinion concurring (agreeing) with the Court's decision. In it, he said, "The present assault on capital [money] is but the beginning. It will be but the stepping stone to others, larger and more sweeping, till our political contests will become a war of the poor against the rich; a war constantly growing in intensity and bitterness."

Interest in a federal income tax did not go away, and the issue came up again in Congress in 1909. In April that year, the Senate was considering the country's tariff rates, taxes on imports. U.S. senator Joseph W. Bailey (1862–1929) of Texas proposed to add to the tariff law another income tax law like the one from 1894. Bailey believed the Supreme Court's decision that the 1894 tariff act was illegal was wrong, and he wanted the Court to have another chance to consider the question.

Senators who were opposed to an income tax, including Nelson W. Aldrich (1841–1915) of Rhode Island, held meetings with President William Howard Taft (1857–1930; served 1909–13) to develop a strategy. The plan they came up with was to have President Taft ask Congress to propose a constitutional amendment for making income taxes lawful. To succeed, a constitutional amendment would have to be ratified by three-fourths of the state legislatures. Taft and Aldrich did not think the legislatures would ratify such an amendment, so the proposal was really a clever plan for killing the idea of passing a federal income tax. If the amendment failed to be ratified, Congress would not dare pass an income tax law.

The plan failed. After Congress proposed the Sixteenth Amendment in July, state legislatures began to approve it. By February 25, 1913, thirty-eight states had ratified it, officially making it part of the Constitution. The Amendment says, "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."

Popular election to the Senate: the Seventeenth Amendment

Democracy is a form of government in which the power of government rests with the people. According to Kelly and Harbison, "the men who drafted the Constitution had known little and believed less of the dogma [principle] of democracy."

Most of the Founding Fathers believed, instead, that white men with property should control government. To accomplish this, they wrote the Constitution of 1787 to enable the election of members of Congress in two ways: Members of the House of Representatives would be elected by people who had the right to participate in state elections, and members of the Senate would be selected by state legislatures. In general, state laws said that only free white men who owned a certain amount of property could participate in state elections and be elected to state legislatures. This meant that the men choosing the members of both the House and the Senate would come primarily from that social class. (See chapter 3, "Constitutional Role of the Legislative Branch.")

Beginning in 1789, the people of France overthrew that nation's monarchy, a government under which power is held by someone who inherits power by birth or takes it by force, such as a king or queen. Although the revolution was violent and deadly, it spread ideas of democracy to other European nations and America.

The spirit of democracy grew in America during the 1800s. Evidence of this came between 1816 and 1821, when the new states of Alabama, Illinois, Indiana, Mississippi, and Missouri adopted constitutions that gave every free white man the right to vote and to be elected to state government, regardless of property. By the time of the Civil War, most free white men in the country enjoyed suffrage, the right to vote. Adoption of the Fifteenth Amendment in 1870 extended the right to vote to all American men regardless of race or color. While many states continued to use poll, or property, taxes to prevent poor men (especially African Americans) from voting, the movement toward democracy continued.

The growth of democracy led to interest in amending the Constitution to provide for popular election of the Senate instead of selection by the state legislatures. The House of Representatives proposed such a constitutional amendment as early as 1828, and did so again in 1893, 1894, 1898, 1900, and 1902. Fearful of losing their power, the members of the Senate did not support the proposals.

Frustrated with the Senate, many states passed laws at the beginning of the 1900s to hold primary elections for choosing senators. Under these laws, state legislatures were pressured to select the senators who had been chosen by the voters during the primaries. This led both chambers of Congress to propose the Seventeenth Amendment in May 1912. The Amendment says senators are to be elected "by the people," and it became effective May 1913 after thirty-six states ratified it.

Election of senators became even more democratic after the adoption of the Nineteenth, Twenty-fourth, and Twenty-sixth Amendments. The Nineteenth and Twenty-sixth Amendments extended suffrage to women and to young people at least eighteen years old. The Twenty-fourth Amendment made it illegal for the United States or any state to charge a poll tax for participating in presidential and congressional elections.

The Twenty-seventh Amendment

The Twenty-seventh Amendment says that if Congress passes a law changing the salaries for senators or representatives, the law cannot take effect until after at least one House election passes. The purpose of the amendment is to prevent representatives from giving themselves pay raises while in office. It became part of the Constitution in May 1992.

The amendment is not very important in the overall scheme of the Constitution, but the story of its adoption is, because it was one of the original twelve amendments crafted by James Madison and proposed by Congress in 1789. By 1791, the states had ratified only ten of the twelve. Those ten came to be known as the Bill of Rights.

Six out of the fourteen American states had approved the congressional pay amendment by 1791, but it needed eleven states (three-fourths of fourteen) to become law. So the country assumed the amendment was dead. Ohio, however, ratified it in 1873. Then in the 1980s, a congressional aide to a Texas legislator discovered the amendment, which led to a campaign for its adoption. By May 1992, over three-fourths of America's fifty states had approved it, which officially made it part of the Constitution as the Twenty-seventh Amendment.

The Amendment caused a controversy in the field of constitutional law. Some scholars said that an amendment proposed by Congress in 1789 should not be capable of ratification over two hundred years later. The Constitution, however, sets no time limit for ratification of an amendment. If an amendment as proposed by Congress or the state legislatures does not have a time limit in it, it may be able to last forever until finally adopted.

Eighteenth Amendment: Prohibition

Prohibition refers to laws making it a crime to produce or sell alcoholic beverages. A movement for Prohibition began in America in the 1820s. The Anti-Saloon League worked for Prohibition state-by-state in the early 1900s.

In 1917, during World War I, Congress passed the Lever Act. This law adopted Prohibition nationwide for the remainder of the war in order to save grain, from which alcohol is made, for use as food.

In December of the same year, Congress proposed a constitutional amendment to make the manufacture, sale, and transportation of alcoholic beverages illegal all the time, war or no war. Enough state legislatures ratified the proposal to make it the Eighteenth Amendment to the Constitution in January 1919.

The Eighteenth Amendment gave Congress the power to enforce Prohibition with legislation. Congress did so with the National Prohibition Act of 1919, also called the Volstead Act after U.S. representative Andrew J. Volstead (1860–1947) of Minnesota. States also had the power under the amendment to pass enforcement legislation.

Americans disagreed strongly over Prohibition from the beginning, and Prohibition became more unpopular as time passed. In the 1920s, bootlegging (the illegal manufacture and sale of alcoholic beverages) led to violence and other crimes by rival gangs. By 1932, the Great Depression (1929–41), the American economy's lowest period in history, had caused unemployment, or joblessness, for one out of every four Americans. Needing money, many American workers, farmers, and manufacturers wanted to end Prohibition to revive the jobs and income generated by the alcoholic beverages industry. In Good Spirits, Gene Logsdon wrote that during Prohibition, the federal government lost $11 billion of revenue that would have come from taxes on beverages. Meanwhile, law enforcement agencies nationwide spent $300 million on mostly unsuccessful enforcement efforts.

In 1932, presidential candidate Franklin D. Roosevelt (1882–1945; served 1933–45) and the Democratic Party favored the repeal of Prohibition. When Roosevelt defeated incumbent Herbert Hoover (1874–1964; served 1929–33) to win the election, Congress proposed the Twenty-first Amendment before Roosevelt even took office. Ratified the following year, the Twenty-first Amendment ended nationwide prohibition by repealing the Eighteenth Amendment.

The future

Individual senators and representatives propose many constitutional amendments each year. For an amendment to become law, it must first pass both chambers of Congress by a two-thirds vote or be proposed by two-thirds of the state legislatures. It then must be ratified by three-fourths of the states, either in their legislatures or in state conventions. (Congress gets to decide whether ratification is by legislature or convention.) Amendments that individual senators and representatives propose rarely pass one chamber of Congress, and almost never pass both chambers to be presented to the states for consideration. Similarly, amendments almost never get the two-thirds support needed from state legislatures to be proposed for consideration by the people.

Americans have expressed interest in a number of amendments relating to the powers of Congress. Two of the more popular proposals are for limiting how long a person can serve in Congress, and for requiring Congress to balance the federal budget each year.

Term limits

Under the Twenty-second Amendment, a person cannot be elected president more than twice. The Constitution does not, however, contain term limits for senators and representatives. J. Strom Thurmond (1902–2003), who served as a senator from South Carolina for forty-eight years, holds the record for longest service in Congress as of 2004. Thurmond retired from the Senate in January 2003 at age 100 and died that June.

Some Americans think term limits are unfair, because people should be able to elect whomever they want to office. Many Americans, however, want a constitutional amendment to limit how long a person can serve in Congress. Organizations such as U.S. Term Limits and Citizens for Term Limits are working for such change. The homepage of the Web site for U.S. Term Limits captures the spirit of this movement with the saying, "Citizen Legislators, Not Career Politicians."

In 1994, many Republicans running for the House of Representatives used a campaign strategy that they called the "Contract with America." It was a list of promises to try to change government if they won their elections. One of their promises was to propose a constitutional amendment for imposing term limits on members of Congress. Although Republicans took control of the House with heavy wins in the November 1994 elections, the House failed to pass a term limits amendment.

Twenty state legislatures took matters into their own hands by passing state laws imposing term limits on federal senators and representatives from their states. In 1995, however, the U.S. Supreme Court struck down these laws. In U.S. Term Limits, Inc. v. Thornton, the Court said states lack power under the Constitution to impose term limits on federal legislators. Instead, the nation will have to adopt a constitutional amendment if it wants congressional term limits. (In the meantime, many states have imposed term limits on state legislators, which the states clearly have power to do.)

Balanced budget amendment

A budget is a plan for how the federal government will raise and spend money each year. When the government raises more money than it spends, it is operating at a surplus. When it spends more money than it raises, it is operating at a deficit.

Under the Constitution, Congress is the branch with the power to raise money and distribute it for spending. This means that Congress has the ultimate authority to make the federal budget.

A topic that arises periodically in Congress is the balanced budget amendment. This is an amendment that would require Congress to balance the budget each year to eliminate federal deficits. In other words, the federal government would have to operate each year under a budget with a surplus or at least without a deficit.

People who support a balanced budget amendment, such as members of the Concord Coalition, a nonpartisan, grassroots organization in favor of fiscal responsibility, say it would reduce wasteful spending by the federal government and make Americans more prosperous. People who oppose such an amendment, such as members of the Center on Budget and Policy Priorities, a group that works at the federal and state levels on fiscal policy and public programs that affect citizens with low and moderate incomes, say it would prevent the government from helping the American economy improve during bad times.

A proposed balanced budget amendment passed in the House in 1995, and was just one vote short of passing in the Senate in 1997. In February 2003, U.S. representative Ernest Istook (1950–) of Oklahoma, a Republican, introduced another balanced budget amendment. At the time, the federal government was expecting deficits of $304 billion for 2003 and another $307 billion for 2004. As of 2005, however, the amendment has not been passed for presentation to the states for ratification.

For More Information

BOOKS

Beard, Charles A. American Government and Politics. 10th ed. New York: Macmillan Co., 1949.

Burnham, James. Congress and the American Tradition. New Brunswick, NJ: Transaction Publishers, 2003.

Kelly, Alfred H., and Winfred A. Harbison. The American Constitution: Its Origins and Development. 5th ed. New York: W. W. Norton & Co., 1976.

Kurland, Philip B., and Ralph Lerner. The Founders' Constitution. 5 vols. Indianapolis: Liberty Fund, 1987.

Levy, Leonard W. Original Intent and the Framers' Constitution. New York: Macmillan, 1988.

Logsdon, Gene. Good Spirits: A New Look at Ol' Demon Alcohol. White River Junction, VT: Chelsea Green Pub., 1999.

Roelofs, H. Mark. The Poverty of American Politics. 2nd ed. Philadelphia: Temple University Press, 1998.

Volkomer, Walter E. American Government. 8th ed. Upper Saddle River, NJ: Prentice Hall, 1998.

Wolfensberger, Donald R. Congress and the People. Washington, DC, and Baltimore: Woodrow Wilson Center Press and Johns Hopkins University Press, 2000.

Zinn, Howard. A People's History of the United States. New York: HarperCollins, 2003.

PERIODICALS

Dewar, Helen. "On Term-Limits Amendment, Republican Divisions Are Widening." Washington Post (November 30, 1994). Also available at washingtonpost.com.http://www.washingtonpost.com/wp-srv/politics/special/termlimits/stories/113094.htm (accessed on March 10, 2005).

CASES

Gibbons v. Ogden, 22 U.S. 1 (1824).

Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964).

Houston, E. & W. Tex. Ry. v. United States, 234 U.S. 342 (1914).

Katzenbach v. McClung, 379 U.S. 294 (1964).

McCulloch v. Maryland, 17 U.S. 316 (1819).

Pollock v. Farmers' Loan and Trust Co., 157 U.S. 429 (1895).

Pollock v. Farmers' Loan and Trust Co., 158 U.S. 601 (1895).

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).

Wickard v. Filburn, 317 U.S. 111 (1942).

WEB SITES

"Amend Our Constitution to Require a Balanced Federal Budget." Concord Coalition. http://www.concordcoalition.org/news/bba_drop.html (accessed on March 10, 2005).

Center on Budget and Policy Priorities.http://www.cbpp.org/ (accessed on March 11, 2005).

Greenstein, Robert. "The Balanced Budget Constitutional Amendment: An Overview." Center on Budget and Policy Priorities.http://www.cbpp.org/Bbaovrvw.htm (accessed on March 10, 2005).

Harris Poll. "More Than Two-Thirds of Americans Continue to Support the Death Penalty." Harris Interactive.http://www.harrisinteractive.com/harris_poll/index.asp?PID=431 (accessed on March 14, 2005).

"House Members Introduce Balanced Budget Amendment." CNN.com.http://www.cnn.com/2003/ALLPOLITICS/02/13/budget.amendment.ap/ (accessed on March 10, 2005).

"State Legislative Term Limits." U.S. Term Limits.http://www.termlimits.org/Current_Info/State_TL/ (accessed on March 10, 2005).

"U.S. Constitution: Twenty-Seventh Amendment." Findlaw.com.http://caselaw.lp.findlaw.com/data/constitution/amendment27/ (accessed on March 10, 2005).

U.S. Term Limits.http://www.termlimits.org/ (accessed on March 11, 2005).

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