I have read a lot of history about the United States “Civil War.” There are those who tend to side with the South and there are those who tend to side with the North. Any conversation engaged on by either side of this issue tends to become quite heated, quite quickly.
As an historian or political philosopher I would make the case that it is our understanding of the past which defines us. Where the war-time historian’s axiom, “history is written by the victor,” comes into play, with as much propaganda in circulation at the time of the conflict, finding the truth can become quite difficult. In my mind one of the biggest problems in this country, to this date, is that the real history is not popularly known, and thus, the conflict known as the “Civil War” remains unresolved.
There is one thing, however, which historians on both sides of the continuing conflict between big and limited government universally agree on is that the size and scope of federal power under the rule of Abraham Lincoln was vastly increased.
Thus far this discussion of the amendments to our beloved Constitution has been limited to the Bill of Rights, being composed of the first ten amendments, one amendment to limit federal judiciary power and one amendment to change the manner of presidential elections so as to eliminate ties in the electoral voting system. All of them are either restrictions on the size and scope of federal power or a redefinition of already existing federal power.
From 1787, when the Constitution was signed, to 1865, where the 13th Amendment was “ratified,” a period of time lasting seventy-eight years, the country experienced unprecedented growth.
Got that?
Zero growth of the federal power under the Constitution—unprecedented growth of the United States.
From 1865, when the 13th Amendment was “ratified,” until 1992 when the 27th Amendment was ratified, a period spanning 127 years, the growth of the United States ever increasingly slowed with each amendment until finally with the acceptance of Hawaii into the country in 1959, it stopped completely.
I have talked more fully about this in this post from 2016. Prior to 1867, when Nebraska joined the United States, the growth of the country was one State every 2.16 years. That’s thirty-seven States in eighty years. Since 1867 a new state has joined the country on average every 11.92 years. Since 1959 the net growth of the United States has been zero. That’s thirteen States in one hundred fifty five years. Zero in the last sixty-three years.
That’s seventy-eight years and twelve amendments which did not expand federal power, verses one hundred twenty seven years and fourteen “amendments” most of which do expand federal power. And somewhere during the later period in time the United States stopped growing.
I wish at this time to mention again an idea that seems rather alien to most of the good People of this country. This is the idea that an amendment to the Constitution can in itself be a violation of the Constitution. I get it that this idea seems kind of crazy at first but please again consider with me the Tenth Amendment. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This, as stated, is an absolute. There is nothing equivocal about it at all. This far, no further. Per this, were the Constitution to be actually followed, it is impossible for the federal government to expand its power without violating the Tenth Amendment or repealing it.
So along comes Lincoln, who in violation of the Constitution, waged war on States who wished to do nothing other than leave the country, rightly or wrongly, and set the precedent that the guy with the biggest and most guns has the right to decide whatever the federal government should be.
And for those of you who would argue that it was unconstitutional for the Southern States to secede I urge you to consider this quote; “If you bring these leaders to trial, it will condemn the North, for by the Constitution, secession is not rebellion. His [Jefferson Davis] capture was a mistake. His trial will be a greater one. We cannot convict him of treason.”—Salmon P. Chase, Chief Justice of the US Supreme Court, 1867. Should you wish for more information on this subject I most humbly suggest that you read this article also authored by myself.
So here we are at the Twelfth Amendment, considering the Tenth Amendment versus the Thirteenth Amendment, and at stake is the idea of if the federal government and a majority of States have the authority to expand the government any damn way it wants. As stated in my post “The Amendments: Part One” I make the case that the answer to this question is a very solid “NO!” Were the answer to this question in the affirmative it would then be possible for the federal government, plus a majority of the States, to take unto themselves whatever power, based only on whatever whim they deemed necessary, including the power to cannibalize a minority of States, if they so wished.
I’m fairly certain the Founding Fathers would have opposed this. I’m also fairly certain that I agree with them on the point.
The Thirteenth Amendment contains a recurring idea never before written in the Constitution. It is stated as in its own Section Two as, “Congress shall have power to enforce this article by appropriate legislation.” For the first time in history the federal government had, by force of arms, expanded its own power and established a beachhead directly into the individual lives of the American People.
Should slavery have ended? Absolutely. But the power to end slavery has always rested upon the States as a Tenth Amendment, State’s Rights, issue.
The proper way to do this with federal power would have been to first repeal the Tenth Amendment (Repeal part of the Bill of Rights? Fat chance of that as a popular issue!) then pass the Thirteenth. As they are they are mutually exclusive to each other. You can’t have both in a logical universe. With the general acceptance of the Thirteenth as a federal power, the Tenth Amendment, an inherent and vital part of the Bill of Rights itself, was simply ignored as if it were not even there.
All laws are subject to constitutional scrutiny. Amendments to the Constitution are themselves laws and as such are not above the same considerations as any other law. Where they contradict each other, the latter is logically in violation of the other, unless the previous law is specifically repealed. This is the way all law works.
By this logical standard any law that gives Congress more power is a violation of the Tenth Amendment, unless and until, of course, the Tenth Amendment is repealed.
So continuing with the amendments as they stand, the Thirteenth Amendment, which ended slavery, is the first of the amendments that should be considered unconstitutional. Yes, slavery, which the United States inherited from the British, is a very bad thing and should have been ended as soon as humanly possible. My point is the federal government had no authority to do it. Even Lincoln has said this.
Don’t believe me? That’s fine. But you have the problem of all of his quotes like this one; “I say that we must not interfere with the institution of slavery in the states where it exists, because the constitution forbids it, and the general welfare does not require us to do so.”—Lincoln’s Speech, Cincinnati, Ohio, September 17, 1859. As often as I am inclined to disagree with Lincoln and his actions I am occasionally forced to agree with his words.
Again, lest I be misconstrued, I believe slavery is evil and should be ended as soon as possible. What I do not believe is that there is some supreme arbiter of such issues within the federal government of the United States. The federal government was conceived as a servant of the States in issues of national defense and international relations. Not the master.
Which brings us to the next of the unconstitutional amendments, the Fourteenth. And you know what? I’m going to skip it for now. It’s so bad from top to bottom that it deserves a posting of its own. People have written entire books on the subject. The only comment I will make on it for now is that it further invaded the individual rights of the People with federal interference. The thing to take away from it that is necessary to go on beyond this point is that prior to the Thirteenth and Fourteenth Amendments the federal government had exactly zero power over the lives of the People as individuals. The Fourteenth gives the federal government, under “privileges” and “immunities,” omnipotent power over the lives of the American People. The protection aspects of the privileges and immunities of the citizens were originally covered by the States in Article Four, Section One and Two. With the Fourteenth taking that power from the States, again without repealing Article Four, Section One and Two, and the Tenth Amendment, the Fourteenth is in violation of the Constitution and has established its ownership of all of the People.
The Fifteenth continues this trend on the invasion of the People’s individual lives by the federal government through dictating to the States which people can vote. As I’ve pointed out in this post, election powers are given by the Constitution to the States. It is a violation of those powers to enforce federal authority in State held elections, at least without repealing those powers first.
The Sixteenth Amendment, “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration,” is just a crude and gross example of a bunch of thugs with guns saying “give us your money.” And why the hell not? The Thirteenth, Fourteenth and Fifteenth already gave them the power to do anything they want. Why not codify it some more?
More than that there is the lingering question about the irregularities in the ratification process. A very valid argument can be made that ratification was incomplete and thus, invalid from the start.
The Seventeenth Amendment, while constitutional, was just a bad idea from the beginning. As it was originally written in Article One the Constitution gives the People their representatives through the House of Representatives. The Senate was composed of representatives, chosen by the governments of the States as the representatives in the federal government for the States themselves. The senators as such were obligated to follow the orders of the governments of the States. Under the Seventeenth the States have no representatives within the federal government and the People have them all. This grossly undercuts the power of the States themselves to protect the rights of the People from the unlimited powers of the federal government.
The Eighteenth, banning liquor, was again an unconstitutional violation of the Tenth. As with all federal interference outside of the Tenth Amendment, it was such an unmitigated disaster that it had to be repealed lest the country succumb to the likes of Al Capone.
The Nineteenth, and I’m hoping the ladies will understand me when I say this, is unconstitutional and never should have been ratified as a federal power. Yes, ladies, you should be allowed to vote and I fully stand up for your rights to do so. What I’m saying here is that under the Tenth Amendment this is something that should be done by the States. This as it is represents yet another encroachment of federal power directly into your lives. And who really thinks it’s a good idea for the federal government to dictate the terms of our individual lives?
The Twentieth is completely valid and proper. It changed the dates when a new president takes office and establishes a line of succession because…well…stuff happens.
The Twenty-first repeals the Eighteenth.
***SARCASM ALERT!!!***
As we are continuously told by the proponents of term limits, the way to fix the United States Congress is to impose term limits on them. As I’ve said here, this will fix nothing. It fixed nothing for the president. It will fix nothing for Congress. But I digress…
The Twenty-third gives the District of Columbia a presidential vote. I haven’t bothered to consider if this was a good idea or not but it is unconstitutional, again in violation of the Tenth it gives more power to Congress over the States and People.
The Twenty-fourth bars poll taxes. This is pretty grossly unconstitutional being not only in violation of the Tenth but in every other part of the Constitution that gives powers to the States over their elections. It presumes again the authority of the federal government to tell who can and can’t vote.
The Twenty-fifth, completely constitutional, establishes and further defines the presidential line of succession should the president be somehow incapacitated…because…you know…stuff happens.
The Twenty-sixth sets the voting age to the tender young age of eighteen. While I think anybody who is of an age where they can fight and die in combat for their country, should have the right to vote, I very strenuously object to that authority being pulled from the States where it properly belongs, again under the Tenth Amendment, to where it does not belong. The federal government should have zero authority over voting rights, ages, sexes, colors, mental dispositions, financial dispositions or any other real or imagined ability or disability.
The Twenty-seventh is all together fitting and proper. It limits the Congress’s ability to give themselves pay raises.
That brings us, with the exception of full coverage of the abomination that is the Fourteenth Amendment, up to date.
Were I to propose a constitutional amendment myself I would choose the one I wrote several years ago, which basically repeals all of the ones above that I think are in violation of other parts of the Constitution, particularly the Tenth. You can read about that here.
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