[MUSIC] We're going to talk about four different amendments today. They're the amendments of the Progressive Era, which runs from about the 1890s to the 1920s. And they're connected by a sort of optimism, about government and society. During the Progressive Era, it was thought that government can be improved following scientific methods, and good government can be a force for good. But the amendments all also have interesting things to teach us about Constitutional design in general and about our Constitution in particular. First, the 16th Amendment, ratified in 1913. This gives the federal government the power to tax income. There had been federal income taxes before, but they were frequently temporary ones to pay for wars, and the rates were quite low, two or 3%. A Supreme Court decision in 1895 didn't quite prohibit an income tax, but it made it impossible to administer. So an explicit amendment was adopted. What can we learn from the 16th Amendment? One, you have to pay your taxes. Two, the 16th Amendment continues the general pattern of our constitutional history. Power moves away from the states and to the federal government. This happens when we move from the Articles of Confederation to the Constitution. It happens again more dramatically with reconstruction, and it happens on a smaller scale more or less continuously. The 16th Amendment means that the federal government is going to have more money, and with that money comes power. The federal government can't just order the states to do some things. It can't order them to pass laws, for instance. But if it has enough money, it can say to them, if you want this money, pass this law. And the states usually will. So the 16th Amendment increases the power of the federal government. Still, this isn't necessarily a threat to the balance of power between the states and the federal government. Not as long as the federal government uses its power wisely. And wisely here basically means giving us federal control over an issue only when you can't leave it up to the states. So some issues the states can handle on their own. You lose nothing by leaving them to the states. And maybe you gain something, because the people of different states might have different preferences. Those preferences can be accommodated by a state-by-state regulatory scheme. You get one rule in Massachusetts and a different one in Mississippi. But a federal law will be a uniform, nationwide, one-size-fits-all rule. Some issues, on the other hand, you do need federal law. Typically because some problem crosses state lines, or the states need to cooperate for the regulation to work. They might not do that by themselves. That's our second lesson from the failure of the Articles of Confederation. So the federal government can step in and do it. But what would make Congress pass only the necessary federal laws? What would make them hold back when an issue can be left to the states? If they cared about states rights and powers, that would do it. But we can't really expect them to do that. Basically, we can expect members of Congress to care about getting re-elected, so aha, we'll place the selection of one house of Congress in the hands of people who do care about states interests, state legislators. And that of course is what the original Constitution does. Senators are not elected by the people, they are selected by state legislatures. Now do state legislators really care about state interests. Probably they do, because they also care about being re-elected. They get re-elected by being able to tell the voters what they've done for the state, what problems they've solved. So they don't want the federal government to come in and solve some problem they could've solved on their own. Then they can't get credit for it. So letting state legislatures select Senators, provides a very powerful way of insuring that the federal government doesn't use its powers to intrude into areas that should be left to the States. If it does, the state legislatures won't reappoint those senators. But this structure is what the 17th amendment, ratified in 1913, undoes. The 17th Amendment takes selection of Senators away from State legislatures, and gives it to the people of the State instead. Now, importantly, the Progressives didn't do this because they wanted Congress to stop caring about state interests. They did it because they thought it would reduce corruption. It's harder to bribe all the voters of a state than it is just to bribe just a state legislature. But it had a serious unintended consequence of unsettling the balance between the states and the federal government. And one of the big questions that the Supreme Court has been struggling with, is whether the court should maybe try to restore that balance or to step in to protect state interests, now that the safeguard the founders designed has been removed. So the 17th Amendment illustrates the continual growth of federal power, and the decline of the states. It also tells us something about unintended consequences, because that'snot what it was supposed to do. It can be dangerous to change a structural part of the Constitution, a part that sets up our system of government. The 18th Amendment tells us something about non-structural Constitutional provisions. It tells us basically what kind of provisions we probably shouldn't put in the Constitution. The 18th Amendment is prohibition. It prohibits the manufacture, sale and transportation of alcoholic drinks. This seemed like a good idea at the time, but later Americans decided they actually might want to be able to have a drink. And then we needed another amendment, the 21st, which came 14 years later to repeal prohibition. So the whole episode was a little embarrassing. What does it show? Something about the kind of amendments we shouldn't have. Prohibition was a bad amendment for two reasons. One, it's hard to see why you needed a federal solution at all. Why not just leave it up to the states? And two, this was a very specific policy choice. We do have some of those in the Constitution that have worked out, but they tend to be things everyone really agrees on. Very fundamental principles. No slavery for instance. No denying the right to vote on racial grounds. No alcoholic drinks doesn't quite rise to that level. People can disagree. People can change their minds. That kind of thing probably shouldn't be in the constitution. Last, there's the 19th Amendment, ratified in 1920. This says that the right to vote can't be denied on the grounds of sex. That is, it can't be denied to women and it's going to teach us something about how to make constitutional arguments. Here's how. Suppose that the 19th Amendment has just been ratified, you're a judge. There's a law that discriminates against women. It says maybe that they can't be bartenders. There's a real Supreme Court case, based on a similar law. How does the 19th Amendment affect your analysis here? Well, the interesting point is, that you can use it to argue for either side. One thing you can say, maybe the more obvious one, is that the 19th Amendment reflects a view that women are equal. Their views count too. Their political opinions are as good as men's. And if they're equal, states shouldn't be able to discriminate against them by excluding them from bartending. So the 19th Amendment means that law is unconstitutional. But you can also argue the other way. And here's how. The 19th Amendment guarantees women the vote. And women are more than half of the voting population. If this is a bad law, if it's unjustified, if it's harmful to women, then women can use their political power to get rid of it. So this is a question judges should stay out of. One they should leave up to the political process. The 19th Amendment means the law is constitutional. How is it that you can take the same Constitutional provision and make arguments in opposite directions? The hard questions in Constitutional law are hard because there are arguments on both sides. That's why they give us these great cases where, usually, you have some Supreme Court justices on each side. And we're going to start looking at those cases more now, as we start going through some of the rights in more detail. [MUSIC]
