Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence (12 page)

When the framers of the Constitution devised the complicated process by which presidential electors would select the nation’s president and vice president, they assumed that those electors would run for their offices as individuals, and that the voters would select them on the basis of their individual merits. In that original notion of the way the electoral system would work, it was expected that the electors would each cast two ballots, with no distinction between a presidential and a vice-presidential ballot, and that the person receiving the greatest number of votes would be elected president and the person receiving the next largest number of votes vice president.

The framers of the Constitution did not anticipate the emergence of an organized political party system in which two extra-constitutional political parties, the Federalists and Jeffersonian Republicans, would organize electors (or, in some states, slates of electors) pledged in advance to vote for presidential and vice-presidential candidates as part of a party “ticket.” In the election of 1800, the party ticket of Thomas Jefferson (the person whom the Republicans intended as their presidential candidate) and Aaron Burr (the person whom the Republicans intended as their vice-presidential candidate) received a majority of electoral votes. In fact, though, party discipline was so great that the electors cast their votes on their two ballots in such a way that Jefferson and Burr had an equal number of votes, with no constitutional mechanism for deciding which of the candidates was intended to be the presidential candidate and which the vice-presidential candidate. As a consequence, the election was thrown into the House of Representatives, where, after a great deal of intrigue, Jefferson was selected as president and Burr the vice president.

The adoption of the Twelfth Amendment was a necessary adjustment to the way in which the American party system had transformed America’s presidential elections. Although the provisions of the Twelfth Amendment are as mind-numbingly complicated as the original provisions of Article II, Section 1, the essential feature of the amendment was that henceforth electors would vote separately for the president and vice president. And while the original language in Article II, Section 1, stipulated that the House of Representatives would choose among the five leading candidates should no one receive a majority of electoral votes, the new provision in the Twelfth Amendment narrowed the choice to the top three candidates.

The Thirteenth Amendment was passed by Congress in 1861, as the Southern states were seceding from the union, but not ratified until 1865, after the South had accepted defeat in the Civil War. It marked the first important step in bringing American constitutional practice into harmony with American libertarian values. Although there had been previous, private attempts to eliminate slavery, usually accompanied by promises of compensation for the value of the “property” lost as a consequence of the emancipation of slaves, the Thirteenth Amendment unequivocally abolished slavery, providing for the immediate emancipation of all slaves in the United States, without compensation to their owners. It also gave to Congress the power to enforce the emancipation of slaves, a power that it exercised in the Civil Rights Act of 1866.

Perhaps the most significant and far-reaching amendment to the Constitution, the Fourteenth Amendment is viewed by many scholars and jurists as the provision of the Constitution that has brought the principles enunciated in the preamble of the Declaration of Independence into the realm of constitutional law. The words of the preamble of the Declaration—“that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”—are purely exhortatory; they were important rhetorically in defining American purposes as they declared the colonies’ independence from Great Britain, but they do not have the force of law. At the heart of the Fourteenth Amendment is the stipulation that all Americans born or naturalized in the United States, including the newly freed slaves, are citizens of the United States, and that no state may make or enforce any law that shall infringe on the rights of American citizens, including those unalienable rights of “life, liberty or property” without due process of law. The Fourteenth Amendment’s promise that all persons are guaranteed “equal protection of the laws” would prove an important mechanism by which the Supreme Court, in a series of rulings in the twentieth century, would articulate a uniform standard by which many of the rights spelled out in the Bill of Rights would be guaranteed to all citizens in each of the states.

Section 2 of the Fourteenth Amendment had a more specific intent. It effectively repealed the three-fifths compromise by which slaves were counted as three-fifths of a person in the apportionment of representation and taxation, and stipulates that any state that attempts to deny the right to vote to any male United States citizen over the age of twenty-one will have its representation in Congress and the electoral college reduced proportionally to the number of citizens so disenfranchised. This part of Section 2 was clearly intended by the members of Congress who drafted it as a means of protecting the newly freed slaves’ right to vote. It is notable that the only exception to this protection of the right to vote is in the case of individuals who have participated “in rebellion, or other crime.” This exception not only applied to convicted criminals (who are still denied the right to vote in most states) but also to large numbers of Americans who had participated in the Southern “rebellion” during the Civil War.

Section 3 of the amendment explicitly excluded former Southern rebels from serving in any federal or state office until Congress, by a two-thirds vote, removed that prohibition. This constitutional device effectively turned over control of the “reconstruction” of the former secessionist states to individuals who had remained loyal to the union during the Civil War.

Section 4 of the amendment absolved the federal government of any responsibility for the debts incurred by the Southern states or by the Confederacy during the Civil War.

Finally, Section 5 granted to Congress broad authority to proceed with legislation that would enforce the provisions of the Fourteenth Amendment. In the immediate aftermath of the adoption of the amendment, Congress passed seven statutes aimed at guaranteeing civil rights to freed slaves as well as imposing conditions for readmission to the union on the states that had seceded from it. Over the course of the next two decades, many of the provisions of those statutes would be ruled unconstitutional by the Supreme Court, which adopted an increasingly narrow interpretation of the rights granted by the Fourteenth Amendment.