An introduction to the main themes of the American Constitution—popular sovereignty, separation of powers, federalism, and rights.
Progressive Reforms, Part 2
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从本节课中
Progressive Reforms
You may have noticed by now that amendments to the U.S. Constitution come in waves. In module 13 Professor Amar will go over the third wave to break. Amendments 16-19 made America's version of democracy more direct and more universal than ever before. The addition of women to the voting pool forever altered America's political course. Eventually leading to the passage of socially conscious policies such as the New Deal, the Great Society, and Obamacare.
与讲师见面
Akhil Reed AmarSterling Professor of Law and Political Science
Yale Law School
Welcome back.
We're in the middle of our discussion about the Progressive era amendments,
and we're going to focus in particular on the 16th, 17th and 19th Amendments.
The 16th amendment, the income tax amendment, reaffirms the power
of the federal government to impose a tax on income.
And I say reaffirm because, in my view the
federal government always had this power. Remember the Constitution is basically a
pro-tax revolution enacted shortly after the anti-tax revolution of 1776.
The Constitution is all about taxation with representation.
The, the Declaration of Independence and the American colonies oppose it said,
said the Declaration of Independence in effect said, and the colonists at the
revolution said. No taxation without representation.
And in the Constitution, article one section eight is all
about taxation with representation and we need taxation for various purposes.
Most dramatically national defense.
And the longest section of the constitu, the longest article is article one.
And the longest section, the section eight.
And section eight begins
by saying Congress shall have power to basically tax you up
and down and sideways and pose taxes, duties, imposts and excises.
How many ways can they basically say that you're going to be taxed, but don't worry.
At least there's a reason why, maybe you should worry.
But there's a reason why we need taxation
for national security, and it will be legitmate.
because Congress will be representative.
And in my view, there was nothing about a federal income
tax that was distinctively problematic.
And Abraham Lincoln thought the same thing.
And during the Civil War he signs his name to a law that imposes an income tax.
And it's a progressive income tax.
It taxes people who make who have more income, at a higher rate.
And, and it exempts people who, who make below a certain amount.
Those are the two basic
features of a progressive income tax.
A progressive income tax basically takes proportionately more
from the people who are making more money.
By exempting people below a certain amount and by having higher tax rates
proportionately for people who are higher income earners.
So Lincoln signs an income tax a statute in the middle of the Civil War, and it's
upheld by courts. So many states had income taxes.
All of which were generally progressive.
But the Supreme Court at the end of the 19th
century did an about face and say income taxes are unconstitutional.
And that's impart because the party of Lincoln which begins as an anti-slavery
party, eventually because of becomes the dominant
party the, the Democrats have discredit themselves
because of slavery and succession.
Lincoln's dominant political party attracts a
lot of, of money and other things.
So it was from kind of an anti-slavery party to a,
a corporate party, the party of Lincoln becomes the party of Grant.
Here comes the party of McKinley.
And in that era the supreme court by five to four vote over an emphatic descent by
John Marshal Harlem.
The same guy who descents in the Plessey vs Fergason case.
But over his emphatic descent he says.
This ruling is going to be a disaster for the
country, but over his descent, five justices will claim
an income tax unconstitutional because it's quote, and in
their view, a direct tax, which would requires state apportionment.
I'm not going to go into all the details except to stay there.
But I don't buy it, a lot of constitutional
scholars who have studied the matter don't buy it.
A lot of tax experts who have studied the matter carefully don't buy it.
The direct tax language of the constitution was very
much bound up with all sorts of compromises about slavery.
It was, there were ways camouflaging some of the pro-slavery aspects of the
constitution by linking the the idea of apportionment,
representation with taxation but direct taxation.
As I said, I'm not going to go into all the details except to say that I
don't think an income tax is an improper
direct tax within the meaning of the Constitution.
A direct tax is something you simply can't avoid at all.
A head tax, putting a tax of $10 on every person.
You just can't avoid that, short of death. That's a direct tax.
It's also called the
capitation, and one of the reasons the framers tried to limit
direct taxes as they didn't want early Congresses to be able
to in effect to prevent the importation of, of of slaves
from abroad by, by taxing slave importation or taxing slaves themselves.
And so, these, there, there were pro slavery compromises
built into some of the language about direct tax.
But even at the founding, I think it meant something very narrow.
You can avoid an income tax, just don't make income.
I'll live off of your savings and do other things.
So, so and income tax is not a direct tax.
Maybe land taxes of a certain sort. We'll also see in this direct taxes.
Direct taxes on, on pieces of real property
but, but income tax, I think, at the founding
was understood as a permissibly transactional indirect tax.
It was perfectly okay.
And so thought Abraham Lincoln and his generation and
the Court originally upheld it but then invalidated it.
And then the American people basically rose up against the Supreme Court.
Only four times in American history have the American people
responded to a Supreme Court decision by overturning it by amendment.
The 11th amendment
when the judiciary early on went too far in expanding it's own powers.
And in a case called Chism vs Georgia and that generated the 11th amendment.
Dred Scott went too far in a whole bunch of
ways and the 14th amendment reputiated the Dred Scott case.
The polished case, the income tax case, is
repudiated by the income tax amendment, the 16th amendment.
And then there's going to be one more later in our story.
So stay tuned
for that one. Now members for both parties supported the
income tax amendment. Teddy Roosevelt and William Howard Taft.
For the Republicans Woodrow Wil the Democratic party was also on board.
So, amendments succeed when both parties are in favor
of them, and that's what happened with the 16th amendment.
Which as I said in my earlier lecture, my previous lecture, sort of laid the
foundations in some very important ways for the, the modern redistributed estate.
Our, the income taxes have that we've had, have
always at least in theory been progressive redistributed income taxes.
In practice, one can, one can raise questions.
The 17th amendment also adopted in the
the 1910s as was the, income tax.
The early 1910s income tax amendment
provides for the direct election of Senators.
And you might wonder why would existing Senators ever go for that?
Because remember, no amendment can pass unless 2 3rds of the House and
2 3rds of the Senate and 3 quarters of the States say yes.
So, why would existing Senators who are
basically picked by State Legislators just ever
vote to change the rules, by which Senators are picked?
And part of the answer is, by the time the 17th Amendment
comes along, a bunch of Senators are already kind of directly elected.
There have been improvisations in the founders' system.
These improvisations begin as early as the 1850s with the
famous Lincoln-Douglas debates in the wake of the Dred Scott case.
In 1858, Abe Lincoln
wants to be US Senator from Illinois.
Stephen Douglas who's the current U.S. Senator wants to be reelected and legally,
strictly speaking, they're go, the Senators going to
be picked by the Illinois state legislature.
But what Lincoln and Douglas do, what the political parties did,
look first, the political parties basically
say, before the state legislative election.
The Democrats say we're going to nominate Steven Douglas and the Republicans
say we're for Abe Lincoln for senate.
And they announce that before the state legislative election.
Now the state legislative election kind of becomes a referendum of
sorts on whether you're a Lincoln man or a Douglas man.
If you're a Lincoln man vote Republican for state legislature,
if you're a Douglas man, vote Democrat for state legislation.
Now, it's not perfect, it's not a perfect referendum.
Because there's some malapportionment and gerrymandering
and not all districts are open
in the election, and there might be other issues
that you care about other than Lincoln versus Douglas.
So it's not perfect, but, but the election in 1858 for state
legislature was kind of rough referendum
on whether you preferred Lincoln or Douglas.
And in fact, Lincoln got slight, Lincoln's supporters cast slightly more vote than
Douglas' supporters but not quite enough to swing the election in his favor.
Later generations of Americans
will sort of further improvise toward a direct election system.
In states that have, basically, like, wha, where one party is
dominant the key becomes to election becomes winning the party nomination.
And if the state uses a primary system to pick its nominee well then the primary
becomes in effect the direct election. And a bunch of states basically,
especially in the South where one party stays, the Democratic party.
Was the dominant party in, in some western, in some southern states.
And there were other one-party states in the Midwest.
So primaries were a kind of direct elections.
Oregon improvised a different system.
Oregon basically said, when you vote for Congress, for a US Senator,
for a member of the House of Representatives, for state legislature,
when you vote, we're going to put on the ballot a non-binding question.
The non binding question is whom do you prefer for the US Senate.
Okay, and there were different iterations of it.
The first version like whom do you prefer and then,
you know, we're going to ha, actually have a second question.
State legislators have to either promise to
support the winner of the beauty contest.
The beauty contest is who do you want for U.S. Senator.
So you either, I'll if you're running for State
Legislature your name appears on the ballot and whether
you're Republican or Democrat on whether you've taken the
pledge, I pledge to support the beauty contest winner.
So if you pledge to support the beauty contest winner, even if you're a democrat
if the republican is the beauty contest,
you're promising to vote republican for US Senate.
So second version is, your name and whether you've taken
the pledge.
And the later version is you're actually required to honor your pledge.
Now what exactly that means, is that constitutional?
But in any event by the time the
17th Amendment comes along a bunch of, of Senators
are already kind of directly elected through some version
of the Oregon Plan or through the primary system.
In one-party states.
And the 17th Amendments adoption is
a great dem, democratizing moment that will actually have
reverberations later on, it's going to, for example, help make
it easier for the US Supreme Court much later to
insist on one person, one vote, for state legislative elections.
Why?
Because when state legislatures picked US Senators remember,
state legislatures might be kind of mal-apportioned and that mal-apportionment
would be the basis for the US Senators election and re-election.
So US Senators would have a stake
in state legislatures mal-apportionment before the 17th Amendment.
It might make it hard for
justices to invalidate state legislative malapportionment.
Because remember justices has to, have to be confirmed by the Senate.
But with the 17th Amendment now US Senators are
going to be left to one person one vote state wide.
They don't have a particular
stake in state legislative malapportionment anymore.
Think about how they 17th Amendment has kind of transformed the presidency.
Before the 17th Amendment, members of the House were directly elected.
Yes, they were more numerous, they were less
prestigious Senators were smaller, more elite, more prestigious.
But they weren't directly elected so.
Maybe a person from the house could say you know, I'm
more of a populist politician than a person from the Senate.
Well after the 17th Amendment, Senators become every bit as populist as
House members but elected state wide for six terms in this select body.
So no member before the 17th Amendment various people went from the House of
Representatives to the Presidency without having to
get a ticket punched in the Senate.
After the 17th
Amendment we haven't had any of those types.
Who include people like James Madison, for example, James K.
Polk.
But not since the 17th Amendment has a mere House member and non-Senator
won the Presidency like Newt Gingrich or Dick Gephardt, something like that.
17th Amendment has even changed how we think about the Cabinet.
At the founding your state legislature sends you to the
Senate, but they might prefer that you be in the Cabinet.
You can deliver all sorts of goodies to the state, so here's what they tell you.
Go to the Sen, go into the Cabinet and we'll hold your seat.
And when you're done with your cabin service you can
go back to, we'll give you your Senate seat back.
Cabinet sandwiches, Senate to Cabinet back and to Senate.
There were a bunch of those before the 17th Amendment.
That's not an easy deal you can strike
with the electorate at large, it doesn't quite work.
So before the 17th Amendment lots of cabinet sandwiches.
After the 17th Amendment no more cabinet sandwiches.
People leave the senate to go into the
cabinet but they don't go back to the Senate.
The way Benson Hillary Clinton, John Kerry, and others.
They might leave the Senate to go to the Cabinet, but
they don't count on going back to the, the Senate anymore.
So the 17th Amendment has actually kind of
changed all sorts of other aspects of government.
Senators used to be much more commonly picked as Supreme Court justices.
Since this in recent decades, not so much.
Maybe that's because now US Senators have to be much more
populist politicians than before when they were sort of more elite statesmen.
Maybe their earlier job description was a little
closer to what a Supreme Court justice does and
their new job description is rather different.
You have to be a populist politician and maybe.
That's in slight tension with kind of persona and
personality that makes for the best Supreme Court Justice.
So the direct selectio of Senators has had some all sorts of interesting indirect
effects if you will. Over the Cabinet, over the presidential
elections, and over the scope of national powers
as I argued earlier that, that, that Senators are going to be
much more willing to vote for a nationalist projects.
You're going to need a lot of money maybe to run for the Senate.
So people who thought senators wasn't going to
be a millionaires club anymore if we have election.
Not so sure that they turned out to be right.
But maybe the money is getting spread
around in democratic campaigns, rather than in bribes, into
the pockets of state lawmakers. For example old-style state legislators.
So, so the 17th Amendment has actually reconfigured our
system, I think, in all sorts of interesting ways.
But by far, the most important amendment it seems
to me of the progressive era is the 19th Amendment.
Direct excuse
me, the woman's suffrage amendment. It's in fact a doubling of the franchise.
So now by the numbers may be the
most democratic even in all of American history.
And now let's take a step back and try to figure out how that happened.
because here's the real interesting thing.
Before women get the vote, only men are voting.
And only men are going to, therefore, be voting on whether women vote.
So how do women ever sort of bootstrap themselves
into the vote, because they can't vote themselves the vote.
They have to allow men to, to vote first so how does that ever happen?
And the answer is gradually it takes 50 years for women basically to get
the vote from the Civil War era when black men get the vote with the
15th Amendment and women are shut out and they're, they're, very disappointed.
Takes 50 years from that for them to finally prevail the 19th Amendment.
1920. And as with
many constitutional reforms. This one begins first in the states.
Federalism is an important part of our story here.
National security is also going to come into the story.
So it's going to be a story of democracy
and it's relationship to federalism and national security.
Here is the federalism story.
Remember this was the great American project, populating the West.
This epic
story of taking these this nearly virgin soil
and creating civilized structures which will eventually
and populating them and eventually admitting these
regimes on equal footing with the older states.
It was an amazing project and, and part of that, in places like Wyoming.
Getting people to come to Wyoming and in particular, getting women to come to
Wyoming, because in 1870, Wyoming basically Wy, which is a territory, has
I think five white men for every white woman, and they're desperate.
They want women to come.
And they're so desperate that they actually start saying
well, maybe we should actually listen to what women say.
Women say they want to vote.
So, we're going to let them, if they come to Wyoming we'll let them vote.
And hey, they say they want equal pay for equal work, we'll promise equal pay too.
So, Wyoming first promises this, in the Wyoming territory.
And, and Wyoming and Utah and Idaho
and Colorado are the first states to promise women the vote.
And the interesting thing is these are the states where there aren't very many women.
And in a way, when you step back, it makes
sense because if men and women in a jurisdiction are 50-50.
And you give women the vote and it turns out to be
a mistake because remember, the rest of the world isn't doing this yet.
So you're, you experiment, you give women the
vote, and it's 50-50, then you can't undo it.
But if you outnumber them five to one, you give the the vote.
If it's a mistake, maybe you can take it back.
Places where the men outnumber the women are also
places where the men are most desperate to get women
to come, immigrate and, and so supply and demand meets
in a good place for women's suffrage in those jurisdictions.
So it's a federalism story to some degree.
Men, the, the place, the irony is the place where women get
the vote first is the place where there are the fewest women.
And that's not true, Wyoming.
And that's not just true in America but in the world.
The state where, the country
that first gives women the vote is New Zealand.
Which is kind of the Wyoming of the, the British Empire where men out number women.
In Australia, which also has kind of territory, the federal system.
The places where women are fewest, western Australia, the
kind of Wyoming of Australia, gives women the vote earlier.
So this is a story that, that is true more internationally.
But then here's the second part of it.
So some states experiment.
Federalism, laboratories of experimentation.
And states are innovating here just as states
first had Bills of Rights and written constitutions
and three branches of government and bicameral legislatures
and states are getting rid of slavery first.
And, and so states are leading the way on sorts of things.
States are putting constitutions to special votes first, so
here's few states are giving women the vote, and the
sky does not fall.
So the other states start to follow suit eventually.
I'm saying well, if you're going to come all
the way across the plains and over the mountains.
You know, why stop in Wyoming? Come all the way to California, you know?
Come to Oregon. Come to Washington.
So other states start following suit at the beginning of the 20th century.
By 1909, only only four states
with, only 2% of, of America's women. Colorado, Utah, Idaho, and Wyoming.
1909, only four states.
But by 1915-16, a whole bunch of states have begun to join the bandwagon.
And now if you want to run for President or US
Senator you have to be in favor of woman's suffrage.
because if you're not in favor of woman's
suffrage you're conseding all of those woman suffrage states.
So, one Senator from Ohio,he's opposed to woman's suffrage, his
name is Atley Palmer and you've never heard of him.
The other Ohio Senator who's in favor of woman's suffrage, his name is Warren G.
Harding and he's going to get himself elected present on those women's votes.
So, so once you see it start happening in a bunch of other states you say if
you're a national politician that wants to be president
and that means lots of votes in the Senate.
Hey, I want to be in favor of that.
And once you
see different states voting, taking votes on women's suffrage.
And women's suffrage losing 70-30 in the first vote.
And the women keep pushing.
And then the next time when the suffrage loses, now
remember, only the men are voting for it, on, on it.
So it loses 70-30.
Then the next time three years later, they get on
the ballot again in the state, and it loses 60-40.
And then they get on the ballot yet again, you know, three years later.
Because they're persistent,
these women suffragettes. And then it only loses 55-45.
And now you think eventually they're going to win.
And if they win, do I want to be the last
politician, standing in the school house door, resisting women's suffrage.
because as soon as they win, they're going to vote me out of office.
So I have to ge, pay attention, not just to the men who
voted for me, but the women whom I might need for my reelection.
And so, you go from only 2% of America's women voting in 1909.
To 100% in 1920 once male politicians think
that women are going to get the vote.
It becomes almost a self fulfilling policy.
Then everyone kind of clampers on the band wagon.
Want's to jump aboard it so that they're
not on the wrong side of politics and history.
That's a Federalism story, it's a story about political incentives.
It's also though the story of women's suffrage and it's the story of women
[SOUND] being very emphatic and working tirelessly
again and again and again to get this.
Women like Elizabeth Cady Stanton and Susan B.
Anthony and their successors.
That is also the story of national security.
because what else is happening in this period, America is at war World War I.
And Woodrow Wilson initially opposes women's suffrage.
He's a southerner, actually he pretends he's a New Jersey person,
but he's born in Staunton, Virginia, he grew up in, in Georgia.
People in Georgia don't like the 15th Amendment
which guaranteed equal right, voting rights for, blacks
so they don't want a 19th Amendment that's
basically going to be the same thing except for sex.
More federal intrusion into state voting regimes.
Southerners don't like that.
Wilson is a democrat. He's a southerner.
That's the base of the democrat party, he's inheriting
still Thomas Jefferson's party so initially he's not in favor of it.
But then the women start shaming him.
They're chaining themselves to the White House
gates and demanding rights for women, saying.
You're in a war, and you say it's a war for democracy.
And, and yet you don't let your own women vote.
And we're part of the war effort.
Yes, we're not on the battlefield, but
we are providing the economic support that helping
the war effort. And a, and, so Wilson switches.
And here's one of the other reasons he switches.
He believes that this war, stands for, is about something and
eventually he wants it to be a war to end all wars.
He wants to have a league of nations. That will emerge after the war.
A league of nations in which the United States is going to have to
be involved so these European countries don't kill each other again you now,
and, and suck America in.
So the United States is going to have to play a central role in
the League of Nations as sort of an arbitor of old world disputes.
And he as president, Woodrow Wilson, will be the leader of the free world.
That's a new, now job description of the president.
Not just commander in chief and vetoer in chief
and appointer in chief, but leader of the free world.
And he's imagining that for himself.
And he's imagining that vision for the United States.
But the United States will not be able to lead a League of Nations, which is
going to be based on ideas and morals and not just who has the most military might.
The United States will not have that moral leadership,
and Wilson very much thinks of himself in terms
of being a moral leader, won't have that credibility
if we don't let, here in America, our women vote.
Especially because, around the world, other societies
are beginning to let their women vote.
So Woodrow Wilson
comes, personally, to the Senate of the United States, dramatically.
Since Jefferson presidents basically had only sent messages
to Congress, they didn't appear personally before Congress.
But Wilson shatters that precedent and, and goes,
and appears personally before the Congress for various
things, and one of them is an appeal to Congress to get them to to support
woman's suffrage amendment as a war measure.
And he's explicit that this is as.
And now both parties eventually join on board the Republican's and the Democrats.
Because if women's suffrage is going to happen, you don't want the other
party to get the credit without your party getting the credit too.
And Republicans say well, we're the party of Lincoln and
we gave you the 15th Amendment so now we're going to
do it again with the 19th, and the Democrats say
we're the party of Woodrow Wilson and he's in favor of
it, so we are too.
And you get the 19th Amendment and the world will not be the same.
Women's suffrage I think transforms the nature of women, women's politics today.
More women vote than men.
If women all voted for the same candidate, they could basically decide every election
in the country, and if the men are close to evenly divided, the women decide.
That's because of the transformative 19th Amendment.
And I'm going to come back to that in well let me
just tell you that's what this, this depiction is all about.
Women crusading for women's vote, marching in New York city.
I think this is a 1912 or so, I believe they're marching down Broadway.
I"m going to come back to this at the very end.
There are other amendments of the Progressive era, the
18th Amendment gives you prohibition and the 21st Amendment
takes it away sort of undoes it. There's an amendment about
having the presidential term begin in January, rather
than January 20th after the November election rather than in March.
I'm going to say a little bit more about that
amendment in my next pair of lectures.
Because that amendment was designed to reduce the lame duck period.
Someone gets elected in November but they have to
wait all the way til January before taking office.
It turns out and before the 20th Amendment they had to wait all the way' til March.
It turns out there's a way of having
the person who won the election, let's say Romney had won the election against Obama,
having that person take office not in January, but the day after the election.
Turns out there's a way to do that.
And that has to do with a later amendment, a later 20th Century Amendment,
20th Century Amendment that we're going to talk
about in next pair lectures, the 25th Amendment.
so, we're going to talk about that in the next set of lectures,
and we're also going to talk about another generation of Americans that takes
to the streets.
The women are taking to the streets
to write a great historical wrong and injustice.
If they've been excluded from a franchise and that's not right.
And they take to the streets in the 1910s and they prevail 50 years later.
Another half century later, a new generation will arise.
Another generational spu, spurts of amendments.
And this generation will once again take
to the streets to write some great historic
injustices and wrongs.
And that's the story that we're going to tell
among others in the next pair of lectures.
So stay tuned.
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