[BLANK_AUDIO] Welcome back. We're in the middle of our discussion of the Amendments to the Constitution. You hear a lot about the original intent and the framers. But just think for a moment about how significant the Amendments are to, to, to your life, to our collective life. Think about the Bill of Rights, Freedom of Speech and Freedom of Press, Free Exercise of Religion Right to Counsel and, and so on. Those rights are parts of the Amendments to the Constitution. Not the found, not the original document and you might say well they're part of that founding moment, that founding era. True enough, although to know that the very phrase Bill of Rights was not the, the phrase that appears in the document itself. Or that was common at the founding period at least in official references to these early moments in places like Supreme Court cases. The Supreme Court doesn't start referring to these early Amendments as the Bill Of Rights until after the Civil War and because of the Civil War. because during the Civil War and the Amendments so the next generation of amendments people talked a lot about the Bill of Rights. And described the early Amendments as a Bill of Rights and way more important than merely describing them as a Bill of Rights. The framers of the Fourteenth Amendment after the Civil War, much later generation of Americans insisted that that Bill of Rights apply against state and local governments. What lawyers and judges call Incorporation of the Bill of Rights Against the States. Remember, the first amendment says, Congress shall make no law abridging free speech and free press. But, what happens when states try to shut down free political discourse. About for example, slavery. That's not a hypothetical, that actually happened in America in the antebellum period. St, states tried to shut down political discussion. Made the crime to be anti-slavery, a member of the Republican Party, put preachers in the pulpit in prison for preaching against slavery. So not just free speech and free press but free exercise was threatened by this regime. When you think today about the most important Bill of Rights cases that come to your mind, I suspect you're actually strictly speaking, not thinking about the original Bill of Rights. You're probably thinking about cases involving state and local governments. You're thinking about New York Times vs Sullivan. Or Miranda versus Arizona or Lawrence versus Texas. Griswold versus Connecticut. None of those, strictly speaking, is a Bill of Rights case. Every one of those is a Fourteenth Amendment case. A case in which a state was, claims to have abridged a fundamental freedom of Americans, a state or locality. Now from the beginning, at the founding, James Madison actually worried the states would misbehave. When he actually proposed a Bill of Rights or early Amendments to the Constitution the first Congress. He had an Amendment that said, no state shall, but he didn't get the votes for it. Because in the wake of the American Revolution, with a lot of states rights, anti-federalist sentiment very powerful at that time. A lot of Americans were fearful of the central government and thought they could trust state governments. Remember the American Revolution was fought by local governments against an imperial center. And the Bill of Rights reflects that American Revolutionary, anti-federalist, states rights sentiment. Remember it begins, Congress shall make no law. And it ends the Tenth Amendment reaffirming the idea of enumerated powers of the federal government and reserve, reserve powers of, of the states. So the original Bill of Rights, anti-federalist to some extent, protecting rights only against the federal government. Madison wanted more but he couldn't get it at the founding but the reconstruction generation did get it. John Bingham the, the main drafts person of the key section of the Fourteenth Amendment was able to accomplish in the 1860s, what James Madison an earlier Congressperson was unable to accomplish in the 1790s. So, the Amendments loom so so large for us. If you think the Bill of Rights is important, then I suspect that what you really think is important is how the Bill of Rights has come to apply against the states? Because, in fact, before the Civil War even though the, these early Amendments were on the books. They weren't vigorously enforced by courts. Congress passes a Sedition law and courts make it a crime to criticize the federal government. This is Congress shall make no law abridging free speech. Congress may freedom of the press. Congress made such a law and courts enforced it. Supreme Court Justices put man in prison for criticizing the government. And they so the Bill of Rights didn't mean so much on the ground until the only, the only Bill of Rights case of the Supreme Court. Where the Supreme Court, before the civil war enforces, The Bill of RIghts against the Federal government is the preposterous ruling in Dred Scott, 1857. That when Congress prohibits slavery in the territories, when it basically says don't bring your slaves here, if you do, you'll lose them. Keep them out of the territories. You can keep them were they are, but don't bring them into these territories. This territories are free soil. Dred Scott said that law violated the Bill of Rights. That law was unconstitutional. why, because it, it violated, it was a deprivation of property without due process of law said the Taney court, but that's preposterous. Because the law was passed by Congress and enforced by judges and juries. That is due process of law. That's, that's fair procedure. But the Fifth Amendment says, and the Fifth Amendment surely says due process and it says the Federal government can't violate due process. That phrase comes form England. And eh, [LAUGH] England has always had the rule that you can't bring slaves onto English soil that if you do you'd forfeit them. That's the land of due process. Due process was always understood as consistent with prohibiting slavery. But that's the only enforcement of The Bill of Rights against Congress in the antebellum period, the pre-Civil War period. The Bill of Rights today means a lot, it, it's, it's in a part of every American's daily life. And part of your, your consciousness because of cases, basically much later cases, applying the Bill of Rights against the state and local governments. And that's because of the Fourteenth Amendment. A later generation. Or put differently today, we believe passionately in equality. Quality of persons of Black and White, Male and Female Jew and Gentile. The frameous Constitution did not emphatically embed that equality idea. The Declaration of Independence have lofty language. Drafted by a slaveholder, interpreted differently by different people, but not quite binding law. The Fourteenth Amendment puts that word equal in the Constitution in connection with individual equality, quality of all persons. The original Constitution talks about equality of States voting in the Senate. The oh, each state gets an equal number of votes, namely two in the Senate. But had nothing about equality of persons, that's a Fourteenth Amendment. Textual commitment, not a founding era textual commitment, it's all about the Amendments. Look who's president today, Barack Obama. Barack Obama doesn't get elected president under the founder's rules which were pro slavery in some very important ways. Advantage the slave holding South had no guarantee whatsoever that people would be allowed to vote equally regardless of race, color, or previous condition of servitude. Framers said nothing about the equality of voting rights regardless of race. The reconstruction generation, the amenders added that. Fifteenth Amendment without that Amendment, I think it's just unimaginable that someone like Barack Obama could be president. That something like the Voting Rights Act of 1965, which we'll talk about in later lectures, could ever pass. So, George Washington is absolutely central to our constitutional vision. We'll talk a lot about Washington's particular constitutional vision in later lectures. In fact, there will be two lectures devoted just to Washington's vision and he's on the $1 bill and, and, and rightly so, and he embodies national security and NGO strategy. And, he is pro-slavery although, in that he's a slaveholder and he dies a slaveholder, but he, at the end of his life is trying to move away from, from slavery. And that is one of many, many things to be said in favor of the greatness of George Washington. But, Washington will give way to Jackson, another General who can beat the British, embodying national security but now in a much more aggressively pro-slavery way. Washington wanted to end slavery, Jack at the end of his life, Jackson never said anything like that much more pro-slavery puts Roger Taney on the court. And he is, Jackson is the most important figure in antebellum America and he's going to give way eventually and that system fails to aid Lincoln. So, you got the $1 bill, George Washington. You got the $20 bill, Andy Jackson. But the $5 bill, Abe Lincoln. We today live way more in Lincoln's house than in either Washington or Jackson's or Thomas Jefferson's, James Madison's for that matter. We live in a house that was divided against itself because of slavery, that fell because of slavery call that the civil war. That got rebuilt that house, reconstructed if you will, by Abraham Lincoln's generation. So we live, I would argue far more in Lincoln's constitution than then we have understood. That's the generation that rebuilds the Bill of Rights in effect and applied it against the states and promised equality, civil equality for all. Racial equality even in the franchise. That's the modern world that we live in and it's a world of the amenders. So founding fathers, yes we spent a lot of time talking about their vision that's what all the early lectures were about their vision. But I don't want you to forget that our Constitution is an inter-generational project. And you have to take seriously, the Amendments as well as the original founding vision. Now, in that spirit, in the remainder of this lecture and in the next one, I'm going to talk about the next great wave of Amendments. We've talked about the Bill of Rights, we've talked and the Eleventh and Twelfth Amendments of the founding. We've talked about Thirteenth, Fourteenth and Fifteenth after the Civil War. Now let's talk about the next cluster of Amendments. Especially the Sixteenth, Seventeenth and Nineteenth Amendments. Now, you may have noticed that the Amendments come in these generational spurts or clusters. There's the founding era generating the Declaration of Independence and the original Constitution. And, and, the first Ten Amendments and Eleventh and Twelfth. And then nothing for fifth, for more than a half century. Nothing after the Twelfth Amendment in, in, early in Jefferson's administration. Nothing for a half century. Then this cataclysm of Civil War and reconstruction generating Thirteen, Fourteen, Fifteen. So, the next generational spurt. Then nothing again for another half century, basically. And then another generational spurt, Sixteen, Seventeen, and Nineteen, most importantly. And I'm going to spend the rest of this lecture, just making the case that, again, our modern world owes a great deal to the Amendments. The Sixteenth, Seventeenth, and Nineteenth Amendments are huge features of your constitutional world today. The founders, a lot of founders said, well the federal government won't do very much. Most of the thing will be done by states. And today the federal government does lots and some people, some of my friends in the Tea Party think that that's somehow improper, illegitimate and, and not constitutional. And I say to my friends in the Tea Party well, take another look. Because it's not the Constitution isn't just the founding, it's a series of Amendments and the Amendments are nationalizing amendments after the Bill of Rights. Remember, yes the Bill of Rights begins, Congress shall make no law of a certain sort and enter the Tenth Amendment. But the Thirteenth, Fourteenth and Fifteenth Amendments all end with the words, Congress shall have power. Each one of them. Reflecting the nationalism of the Civil War as opposed to the localism of the Revolutionary War. These Amendments after the Civil War codify that nationalism. Congress shall have power in the Thirteenth Amendment, Section Two. Congress shall have power Fourteenth Amendment Section Five. Congress shall have power Fifteenth Amendment Section Two. So, those Amendments reflect enhanced federal power and so do Amendments Sixteen, Seventeen and Nineteen. Another thing that happens, this happened in American history is wars, the Civil War, World War One. Wars tend to enhance the powers of the Federal Government vis-a-vis the states and, and that's going to be a trend. Remember in the middle of the Civil War, Lincoln is trying to unify America. Not just reunify, not just North and South, but East and West through a transcontinental railroad. At the founding, the framers said, things that are genuinely interstate. Transactions that involve more than one state so they really spill over across state lines. Those things the federal government can regulate, interstate commerce. But the reality of the founding is most stuff isn't interstate. Most people live and die in a 50 mile radius. You, you don't have a transcontinental railroad or, or jet travel. So, so much of the economy genuinely is local at the founding. Before refrigeration, you have cows everywhere because you need fresh milk. With the advent of refrigeration, you need cows just in a few places, California, Vermont, Wisconsin a few more. And we can all drink from those cows. Because we've got transportation and refrigeration and communication technology and, and Lincoln is a huge part of that, like with the transcontinental railroad. So, one of the reasons we have more federal power today is that our world is genuinely more interstate and international, more connected than it was at the founding. But as, and that's just a fact about the world that's changed. The framers said, if it's interstate, if it's international, the federal government can do it. And just a lot more [SOUND] stuff today is interstate and international in a world of the Internet and, and supersonic travel, and And, and that, the gat, and international trade. A lot more of the world is genuine international. That's a fact about the world. But also the constitution has been amended to expand federal power. Not just Thirteen, Fourteen and Fifteen on matters of race and civil rights. The federal government will take the lead on championing voting rights, the Fifteenth Amendment, civil amendment, the Fourteenth Amendment. And, and racial rights, generally, all three Amendments. It's not just in human rights. Not just that the federal government has a special confidence here that it didn't have before. but, sixteen, seventeen, and nineteen, add additional federal powers and confidences. At the founding, what's the federal government basically supposed to do? Interstate affairs, western land, and foreign affairs and raised money for. So if it's a revenue measure, the federal government can pretty much do it. If it regulates an interstate problem, the federal government, it spills over state lines, the federal. Can pretty much do it if it's a national security matter, the federal government can pretty much do it if it's a foreign affairs matter. That's sort of the founding vision. Reconstruction adds if it's civil rights matter, human rights matter, voting rights matter, the federal government can do it. Now Sixteenth, Seventeenth and Nineteenth Amendments are going to continue to broaden the scope of federal power. The Sixteenth Amendment is going to affirm and does, and it's adopted began in the 20th century, the power of the federal government to impose an income tax on individuals. Seventeenth Amendment is going to make Senators directly elected by the people of each state rather than the legislature of each state. And the Nineteenth Amendment provides for women voting equally with men. Now my claim is you put Sixteen plus Seventeen plus Nineteen together and you get the new deal. The great society. Obamacare. Here's how. And when you add all that to the fountain, here's how. The Sixteenth Amendment is going to be about the power of the federal government to use its taxing power to accomplish national redistributive projects. We'll talk more about this in the next lecture, but the Sixteenth Amendment was very much designed by people who called themselves progressives. Who believed in a progressive income tax that would redistribute it would take more, redistribute economic resources, take more from the wealthy. And you can more easily do that at the national level than the state level because if a state tries to do that the rich people move out and the poor people move in. But if the federal government tries to do that it has a lot more ability than to pursue national redistributive process. What does the Seventeenth Amendment do? The Seventeenth Amendment frees state frees U.S senators from dependence on state legislators. They're going to be more free to pursue all sorts of national projects, precisely because they're freed from dependence on state legislators. Even if they had the power to do something And the founding regime, he might have hesitated to do it because state legislatures wouldn't like that. Well now, it doesn't matter what state legislators like, it matters what the voters want. So, a modern world in which lots of Senators become Presidents. Well, that's in part because Senators are now directly elected populist politicians, that's the Seventeenth Amendment world. The Nineteenth Amendment women are going to vote. Eventually we come to see that women tend, on average, or at least have for, for much of the last century, to vote more for, ,social welfare measures. For if you're a critic of it the nanny state, if you will. We call that, in part, the, the gender gap, and today, more women than men are voting. And so you add the Sixteenth Amendment, national redistributive, of power in the federal government. And the Seventeenth Amendment, the Senate much more willing to vote for federal projects. And a Nineteenth Amendment, women voting, and women voting for social security and daycare and education. Maybe because women historically have taken care of others in their elderly parents or, or dependent children. Maybe because women them are particularly attentive to to those vulnerable and maybe for other reasons. I frankly don't know why but the data does suggest that women have in recent eras voted more for some of this social welfare legislation than have men. And that's a constitutional development. It's an Amendment development, Sixteen plus Seventeen, plus Nineteen, is very quickly going to give you Franklin and Eleanor Nineteenth Amendment and, you know, with a New Deal. And Bill and Hillary, Barack and Michelle. It's going to give you, in short, Sixteen plus Seventeen plus Nineteen, the, the New Deal, The Great Society and Obamacare. And these I claim are fully constitutional, not just because of the founding vision. But because the founding vision has been supplemented by the reconstruction vision, by the progressive era vision. In my next lecture we going to walk through these Amendments in a little more detail, with particular attention to the Sixteenth Amendment. Income tax Amendment, the Seventeenth amendment, the direct election of Senators, and the Nineteenth Amendment maybe the most dramatic of all, the women's suffrage amendment, so stay tuned. [MUSIC].
