7 - 1 - Progressive Reforms, Part 1 (21:58).txt

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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.
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