A while ago, I proposed a second Bill of Rights. This was not my idea. FDR proposed it some eighty years ago. I took his proposed amendments and adapted them to fit the changing needs of the 21st century.
I’m under no illusion that getting a second Bill of Rights passed will be easy. The Constitution, by design, is not easy to change. There are technically two paths to amend the Constitution. So far in our history, only one path has ever been used. A proposed amendment must pass with a two-thirds vote in both the US House of Representatives and the Senate. It then gets submitted to the states. Three-fourths (38 states) of the states’ legislatures must then vote and pass the amendment. Once the 38th state submits its results back to the federal government, the amendment is official.
How many times has the Constitution been changed in 230 years? A grand total of 27 times. Keep in mind that one of those times was the 21st amendment, which basically amounted to saying never mind about the whole Prohibition 18th amendment. So, really, 25 changes have been made to the Constitution in 230 years. The question is, what changes have been made and when?
The first 10 amendments are the most famous. These are the Bill of Rights. You can make a real argument that these amendments really aren’t so much amendments as the second part of the Constitution. States that agreed to ratify the Constitution in the first place did so with the understanding that a Bill of Rights would be immediately forthcoming. Indeed they were. The Constitution was ratified in June of 1788 and the Bill of Rights were proposed in September of 1789. Notice that if we consider the Bill of Rights as being really a part of the Constitution, then we have only made 15 effective changes to it over the last 230 years.
The next two amendments ratified were Whoops! They were glaring mistakes that the founders muffed on and needed to be ratified quickly. One had to do with states’ rights and the second was about voting for President and Vice-President separately (to keep the Thomas Jefferson / Aaron Burr fiasco from re-occurring). These were wrapped by about 1804. Notice that we are now down to about 13 effective changes over the last 215 years.
And then all constitutional scholars apparently went to sleep. Everything was apparently perfect. That is, until the years between 1865 through 1870. Can you guess what happened? Yep, The Civil War. That whole 3/5 slave compromise then seemed to be slightly misguided, among other things. During this time, the 13th through the 15th amendments were passed. It eliminated slavery (um, except for prisoners), redefined citizenship, and opened up voting (except for the ladies of course, and Southern politicians found all kinds of creative ways to violate its spirit).
And then all constitutional scholars went back to sleep. Everything was apparently perfect again. Not so fast! The progressives are now on the case. When I say progressives, I really kind of only mean the Anti-Saloon League and their brethren. Gaining power during the years between 1909 to 1918, four amendments were passed. Three of them were directly related to Prohibition. The 16th amendment was creating the income tax. This was done specifically to replace the alcohol taxes that were about to go away when Prohibition was passed. The 18th amendment was Prohibition. The 19th amendment granted women the right to vote. The pro-Prohibition forces supported it because they thought that women, as a block, would never vote to repeal Prohibition. During this time, the only progressive amendment passed not directly related to the Prohibition forces was the 17th. This required the direct election of senators.
That was all done by 1920. Not counting the Prohibition repeal amendment (the 21st), that leaves us with 7 amendments that were passed over the last 100 years. Looking at them, they seem pretty small change or were in response to specific timely concerns. Let’s look at them.
20th (ratified in 1933): Moves the Presidential inauguration from March to January. Due to travel in a large country, it made sense in the early days to have the inauguration more than 4 months after the election, but it does make for a pretty long lame duck President. Moving the inauguration to January moved the lame duck President back two months.
22nd (ratified in 1951): Limited the President to two terms. Proposed in 1947, a bare two years after FDR’s fourth election, it’s pretty obvious what inspired it.
23rd (ratified in 1961): Grants DC representation in the electoral college. This is very much solving a small problem while ignoring the much larger problem. Grant DC statehood!
24th (ratified in 1964): Takes away the use of poll taxes as a barrier to voting. This was in response to Southern states trying to get around the 15th amendment. This is the fourth amendment that’s been passed trying to move the country past our historical treatment of people of color. Interesting trivia: Arkansas, Georgia, Louisiana, and South Carolina still have not ratified this amendment.
25th (ratified in 1967): Presidential succession was a problem with the original document. It did not spell out what actually happened when a President dies. Also, there was no action taken if a Vice President died or was removed from office. There were legitimate times in our history where, if a President had died, it would not have been clear who would have succeeded. Specifically in response to JFK’s assassination, this better defined presidential succession.
26th (ratified in 1971): Another long standing issue was being young enough to die for your country but not old enough to vote. The 1960s youth movement and the Vietnam movement was enough of a motivator to get this passed.
27th (ratified in 1992): This one is really small beer. Believe it or not, this was first proposed as part of the original Bill of Rights and then languished for 200 years. It basically says that any legislative pay raises can’t take effect until after an election passes. I’m not aware of any movement of lawmakers granting themselves huge raises. In fact, this was passed primarily due to the efforts of one man. This really seems to be a solution in search of a problem.
There you have it. It’s probably symbolically significant that the last amendment passed was so trivial.
Historically speaking, of the 27 amendments, 12 of them can be tied to early constitution days, 3 of them are immediately after The Civil War, and 4 of them from the progressive era (plus 1 more for the Prohibition repeal). So, 20 of the amendments come from 3 periods of time totaling about 25 years.
The other 7 amendments are spread out over the remaining 200 years. This averages out to about one amendment every 30 years (and it’s been 30 years since the last one has been passed, so we’re due!).
This is a problem. As smart as the founding fathers were in democracy, and yes, they were very smart, still they were white male slave owners living in the 18th century that thought Native Americans were savages and didn’t think of women as full citizens. Not to mention the fact that they lived in an age of horses with no electricity in a country whose population was huddled on the East Coast. In 1790, the population of the US was around 4,000,000. It’s now around 330,000,000.
Do we really think that the Constitution is some sacred document that was handed down to us from some holy mountain? No, it was written by men from our long ago past. It is long past time for us to make the changes necessary so that our Constitution reflects our values and our reality today.
dorkenstein 