Note: In light of the World Intellectual System of Empirical Analysis - empirical self evident propositions, which our system of Republic form of civil government were constructed, was covertly exchanged for a inverted empirical analysis conclusion, delivered with Classic Rationalism argumentation. A Complete Review of all Amendments are now essential!

When this Article was before the Constitutional Convention, a motion to insert a provision that ''no State shall without its consent be affected in its internal policy'' was made and rejected. 1 A further attempt to impose a substantive limitation on the amending power was made in 1861, when Congress submitted to the States a proposal to bar any future amendments which would authorize Congress to ''interfere, within any State, with the domestic institutions thereof . . . .'' 2 Three States ratified this article before the outbreak of the Civil War made it academic. 3 Members of Congress opposed passage by Congress of the Thirteenth Amendment on the basis that the amending process could not be utilized to work such a major change in the internal affairs of the States but the protest was in vain. 4 Many years later the validity of both the Eighteenth and Nineteenth Amendments was challenged because of their content. The arguments against the former took a wide range. Counsel urged that the power of amendment is limited to the correction of errors in the framing of the Constitution and that it does not comprehend the adoption of additional or supplementary provisions. They contended further that ordinary legislation cannot be embodied in a constitutional amendment and that Congress cannot constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a State. 5 The Nineteenth Amendment was attacked on the narrower ground that a State which had not ratified the amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing, i.e., persons chosen by voters whom the State itself had not authorized to vote for Senators. 6 Brushing aside these arguments as unworthy of serious attention, the Supreme Court held both amendments valid.

Cases & Codes > U.S. Constitution > Article IV

Article Text | Annotations

Amendment Text | Annotations

''The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified.'' 1 ''The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.'' 2 That this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States was firmly settled by the refusal of both Houses of Congress to insert the word ''expressly'' before the word ''delegated,'' 3 and was confirmed by Madison's remarks in the course of the debate which took place while the proposed amendment was pending concerning Hamilton's plan to establish a national bank. ''Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.'' 4 Nevertheless, for approximately a century, from the death of Marshall until 1937, the Tenth Amendment was frequently invoked to curtail powers expressly granted to Congress, notably the powers to regulate commerce, to enforce the Fourteenth Amendment, and to lay and collect taxes.

In McCulloch v. Maryland, 5 Marshall rejected the proffer of a Tenth Amendment objection and offered instead an expansive interpretation of the necessary and proper clause 6 to counter the argument. The counsel for the State of Maryland cited fears of opponents of ratification of the Constitution about the possible swallowing up of states' rights and referred to the Tenth Amendment to allay these apprehensions, all in support of his claim that the power to create corporations was reserved by that Amendment to the States. 7 Stressing the fact that the Amendment, unlike the cognate section of the Articles of Confederation, omitted the word ''expressly'' as a qualification of granted powers, Marshall declared that its effect was to leave the question ''whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument.'' 8

In 1863, President Lincoln issued an Emancipation Proclamation 1 declaring, based on his war powers, that within named States and parts of States in rebellion against the United States ''all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; . . .'' The Proclamation did not allude to slaves held in the loyalist States, and moreover, there were questions about the Proclamation's validity. Not only was there doubt concerning the President's power to issue his order at all, but also there was a general conviction that its effect would not last beyond the restoration of the seceded States to the Union. 2 Because the power of Congress was similarly deemed not to run to legislative extirpation of the ''peculiar institution,'' 3 a constitutional amendment was then sought; after first failing to muster a two-thirds vote in the House of Representatives, the amendment was forwarded to the States on February 1, 1865, and ratified by the following December 18. 4

In selecting the text of the Amendment, Congress ''reproduced the historic words of the ordinance of 1787 for the government of the Northwest Territory, and gave them unrestricted application within the United States.'' 5 By its adoption, Congress intended, said Senator Trumbull, one of its sponsors, to ''take this question [of emancipation] entirely away from the politics of the country. We relieve Congress of sectional strifes. . . .'' 6 An early Supreme Court decision, rejecting a contention that the Amendment reached servitudes on property as it did on persons, observed in dicta that the ''word servitude is of larger meaning than slavery, . . . and the obvious purpose was to forbid all shades and conditions of African slavery.'' But while the Court was initially in doubt whether persons other than African Americans could share in the protection afforded by the Amendment, it did continue to say that although ''[N]egro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void.'' 7

''This Amendment . . . is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished slavery, and established universal freedom.'' 8 These words of the Court in 1883 have generally been noncontroversial and have evoked little disagreement in the intervening years. The ''force and effect'' of the Amendment itself has been invoked only a few times by the Court to strike down state legislation which it considered to have reintroduced servitude of persons 9 and it has not used Sec. 1 of the Amendment against private parties. 10 A major change, however, has recently been wrought with regard to the scope of congressional power under Sec. 2 to enforce Sec. 1 of the Amendment.

Certain early cases suggested broad congressional powers, 11 but the Civil Rights Cases 12 of 1883 began a process, culminating in Hodges v. United States, 13 which substantially curtailed these powers. In the former decision, the Court held unconstitutional an 1875 law 14 guaranteeing equality of access to public accommodations. Referring to the Thirteenth Amendment, the Court conceded that ''legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.'' Appropriate legislation under the Amendment, the Court continued, could go beyond nullifying state laws establishing or upholding slavery, because the Amendment ''has a reflex character also, establishing and decreeing universal civil and political freedom throughout the United States'' and thus Congress was empowered ''to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States.'' 15 But these badges and incidents as perceived by the Court were those which Congress had in its 1866 legislation 16 sought ''to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens.'' 17 But the Court could not see that the refusal of accommodations at an inn or a place of public amusement, without any sanction or support from any state law, could inflict upon such person any manner of servitude or form of slavery, as those terms were commonly understood. ''It would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit to make. . . .'' 18

Then in Hodges v. United States, 19 the Court set aside the convictions of three men for conspiring to drive several African Americans from their employment in a lumber mill. The Thirteenth Amendment operated to abolish, and to authorize Congress to legislate to enforce abolition of, conditions of enforced compulsory service of one to another and no attempt to analogize a private impairment of freedom to a disability of slavery would suffice to give the Federal Government jurisdiction over what was constitutionally a matter of state remedial law.

The latter case was overruled by the Court in a far-reaching decision in which it concluded that the 1866 congressional enactment, 20 far from simply conveying on all persons the capacity to buy and sell property, also prohibited private denials of the right through refusals to deal 21 and that this statute was fully supportable by the Thirteenth Amendment. ''Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational one. . . . Just as the Black Codes, enacted after the Civil War to restrict the free exercise of those rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery. . . . At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.'' 22 The Amendment, then, could provide the constitutional support for the various congressional en actments against private racial discrimination which Congress had previously based on the commerce clause; 23 because the 1866 Act contains none of the limitations written into the modern laws it has a vastly extensive application. 24 Whether the Court will yet carry its interpretation of the statute to the fullest extent possible is, of course, not now knowable.

Amendment Text | Annotations

Adoption .--The final decision of Congress not to include anything relating to the right to vote in the Fourteenth Amendment, aside from the provisions of Sec. 2, 1 left the issue of African American suffrage solely with the States, and Northern States were generally as loath as Southern to grant the ballot to African Americans, both the newly-freed and those who had never been slaves. 2 But in the second session of the 39th Congress, the right to vote was extended to African Americans by statute in the District of Columbia and the territories, and the seceded States as a condition of readmission had to guarantee African American suffrage. 3 Following the election of President Grant, the ''lame duck'' third session of the Fortieth Congress sent the proposed Fifteenth Amendment to the States for ratification. The struggle was intense because Congress was divided into roughly three factions: those who opposed any federal constitutional guarantee of African American suffrage, those who wanted to go beyond a limited guarantee and enact universal male suffrage, including abolition of all educational and property-holding tests, and those who wanted or who were willing to settle for an amendment merely proscribing racial qualifications in deter mining who could vote under any other standards the States wished to have. 4 The later group ultimately prevailed.

The Judicial View of the Amendment .--In its initial appraisals of this Amendment, the Supreme Court appeared disposed to emphasize only its purely negative aspects. ''The Fifteenth Amendment,'' it announced, did ''not confer the right . . . [to vote] upon any one,'' but merely ''invested the citizens of the United States with a new constitutional right which is . . . exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.'' 5 But in subsequent cases, the Court, conceding ''that this article'' has originally been construed as giving ''no affirmative right to the colored man to vote'' and as having been ''designed primarily to prevent discrimination against him,'' professed to be able ''to see that under some circumstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding States had not removed from their Constitutions the words 'white man' as a qualification for voting, this provision did, in effect, confer on him the right to vote, because . . . it annulled the discriminating word white, and this left him in the enjoyment of the same right as white persons. And such would be the effect of any future constitutional provision of a State which would give the right of voting exclusively to white people. . . .'' 6

Grandfather Clauses .--Until quite recently, the history of the Fifteenth Amendment has been largely a record of belated judicial condemnation of various state efforts to disenfranchise African Americans either overtly through statutory enactment or covertly through inequitable administration of electoral laws and toleration of discriminatory membership practices of political parties. Of several devices which have been voided, one of the first to be held unconstitutional was the ''grandfather clause.'' Beginning in 1895, several States enacted temporary laws whereby persons who had been voters, or descendants of those who had been voters, on January 1, 1867, could be registered notwithstanding their inability to meet any literacy requirement. Unable because of the date to avail themselves of the exemption, African Americans were disabled to vote on grounds of illiteracy or through discriminatory administration of literacy tests, while illiterate whites were permited to register without taking any tests. With the achievement of the intended result, most States permitted their laws to lapse, but Oklahoma's grandfather clause had been enacted as a permanent amendment to the state constitution. A unanimous Court condemned the device as recreating and perpetuating ''the very conditions which the [Fifteenth] Amendment was intended to destroy.'' 7

The Court did not experience any difficulty in voiding a subsequent Oklahoma statute of 1916 which provided that all persons, except those who voted in 1914, who were qualified to vote in 1916 but who failed to register between April 30 and May 11, 1916, with some exceptions for sick and absent persons who were given an additional brief period to register, should be perpetually disenfranchised. The Fifteenth Amendment, Justice Frankfurter declared for the Court, nullified ''sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.'' 8 The impermissible effect of the statute, said the Court, was automatically to continue as permanent voters, without their being obliged to register again, all white persons who were on registration lists in 1914 by virtue of the previously invalidated grandfather clause, whereas African Americans, prevented from registering by that clause, had been afforded only a 20-day registration opportunity to avoid permanent disenfranchisement.

The White Primary .--Indecision was displayed by the Court, however, when it was called upon to deal with the exclusion of African Americans from participation in primary elections. 9 Prior to its becoming convinced that primary contests were in fact elections to which federal constitutional guarantees applied, 10 the Court had relied upon the equal protection clause to strike down the Texas White Primary Law 11 and a subsequent Texas statute which contributed to a like exclusion by limiting voting in primary elections to members of state political parties as determined by the central committees thereof. 12 When exclusion of African Americans was thereafter perpetuated by political parties not acting in obedience to any statutory command, this discrimination was for a time viewed as not constituting state action and therefore as not prohibited by either the Fourteenth or the Fifteenth Amendments. 13 This holding was reversed nine years later when the Court declared that where the selection of candidates for public office is entrusted by statute to political parties, a political party in making its selection at a primary election is a state agency, and hence it may not under the Fifteenth Amendment exclude African Americans from such elections. 14 An effort by South Carolina to escape the effects of this ruling by repealing all statutory provisions regulating primary elections and political organizations conducting them was nullified by a lower federal court with no doctrinal difficulty, 15 but the Supreme Court, although nearly unanimous on the result, was unable to come to a majority agreement with regard to the exclusion of African Americans by the Jaybird Association, a county-wide organization which, independently of state laws and the use of state election machinery or funds, nearly monopolized access to Democratic nomination for local offices. The exclusionary policy was held unconstitutional but there was no opinion of the Court. 16

Literacy Tests .--At an early date the Court held that literacy tests which are drafted so as to apply alike to all applicants for the voting franchise would be deemed to be fair on their face and in the absence of proof of discriminatory enforcement could not be said to deny equal protection. 17 But an Alabama constitutional amendment the legislative history of which disclosed that both its object and its intended administration were to disenfranchise African Americans was condemned as violative of the Fifteenth Amendment. 18

Racial Gerrymandering .--The Court's series of decisions interpreting the equal protection clause as requiring the apportionment and districting of state legislatures solely on a population basis 19 had its beginning in Gomillion v. Lightfoot, 20 in which the Court found a Fifteenth Amendment violation in the redrawing of a municipal boundary line into a 28-sided figure which excluded from the city all but four or five of 400 African Americans but no whites, and which thereby continued white domination of municipal elections. Subsequent decisions, particularly concerning the validity of multi-member districting and alleged dilution of minority voting power, were decided under the equal protection clause, 21 and in City of Mobile v. Bolden, 22 in the course of a considerably divided decision with respect to the requirement of discriminatory motivation in Fifteenth Amendment cases, 23 a plurality of the Court sought to restrict the Fifteenth Amendment to cases in which there is official denial or abridgment of the right to register and vote, and to exclude indirect dilution claims. 24 Congressional amendment of Sec. 2 of the Voting Rights Act may obviate the further development of constitutional jurisprudence in this area, however. 25

Amendment Text | Annotations

The ratification of this Amendment was the direct consequence of the Court's decision in 1895 in Pollock v. Farmers' Loan & Trust Co., 1 whereby the attempt of Congress the previous year to tax incomes uniformly throughout the United States 2 was held by a divided court to be unconstitutional. A tax on incomes derived from property, 3 the Court declared, was a ''direct tax'' which Congress under the terms of Article I, Sec. 2, and Sec. 9, could impose only by the rule of apportionment according to population, although scarcely fifteen years prior the Justices had unanimously sustained 4 the collection of a similar tax during the Civil War, 5 the only other occasion preceding the Sixteenth Amendment in which Congress had ventured to utilize this method of raising revenue. 6

During the interim between the Pollock decision in 1895 and the ratification of the Sixteenth Amendment in 1913, the Court gave evidence of a greater awareness of the dangerous consequences to national solvency which that holding threatened, and partially circumvented the threat, either by taking refuge in redefinitions of ''direct tax'' or, and more especially, by emphasizing, virtually to the exclusion of the former, the history of excise taxation. Thus, in a series of cases, notably Nicol v. Ames, 7 Knowlton v. Moore, 8 and Patton v. Brady, 9 the Court held the following taxes to have been levied merely upon one of the ''incidents of ownership'' and hence to be excises: a tax which involved affixing revenue stamps to memoranda evidencing the sale of merchandise on commodity exchanges, an inheritance tax, and a war revenue tax upon tobacco on which the hitherto imposed excise tax had already been paid and which was held by the manufacturer for resale.

Because of such endeavors the Court thus found it possible to sustain a corporate income tax as an excise ''measured by income'' on the privilege of doing business in corporate form. 10 The adoption of the Sixteenth Amendment, however, put an end to speculation whether the Court, unaided by constitutional amendment, would persist along these lines of construction until it had reversed its holding in the Pollock case. Indeed, in its initial appraisal 11 of the Amendment it classified income taxes as being inherently ''indirect.'' ''[T]he command of the amendment that all income taxes shall not be subject to apportionment by a consideration of the sources from which the taxed income may be derived, forbids the application to such taxes of the rule applied in the Pollock case by which alone such taxes were removed from the great class of excises, duties, and imports subject to the rule of uniformity and were placed under the other or direct class.'' 12 ''[T]he Sixteenth Amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged.'' 13

Amendment Text | Annotations

The Amendment was adopted after a long campaign by its advocates who had largely despaired of attaining their goal through modification of individual state laws. Agitation in behalf of women's suffrage was recorded as early as the Jackson Administration but the initial results were meager. Beginning in 1838, Kentucky authorized women to vote in school elections and its action was later copied by a number of other States. Kansas in 1887 granted women unlimited rights to vote in municipal elections. Not until 1869, however, when the Wyoming Territory accorded women suffrage rights on an equal basis with men and continued the practice following admission to statehood, did these advocates register a notable victory. Progress continued to be discouraging, only ten additional States having joined Wyoming by 1914, and, judicial efforts having failed,1 and a vigorous campaign brought congressional passage of a proposed Amendment and the necessary state ratifications.2

Following the Supreme Court's interpretation of the Fifteenth Amendment, the state courts which passed on the effect of the Amendment ruled that it did not confer upon women the right to vote but only the right not to be discriminated against on the basis of their sex in the setting of voting qualifications,3 a formalistic distinction to be sure but one which has restrained the possible applications of the Amendment. In only one case has the Supreme Court itself dealt with the Amendment's effect, holding that a Georgia poll tax statute which exempted from payment women who did not register to vote did not discriminate in any manner against the right of men to vote, although it did note that the Amendment ''applies to men and women alike and by its own force supersedes inconsistent measures, whether federal or State.''4

Amendment Text | Annotations

In extending the Voting Rights Act of 1965 in 1970 1 Congress included a provision lowering the age qualification to vote in all elections, federal, state, and local, to 18. 2 In a divided decision, the Supreme Court held that Congress was empowered to lower the age qualification in federal elections, but voided the application of the provision in all other elections as beyond congressional power. 3 Confronted thus with the possibility that they might have to maintain two sets of registration books and go to the expense of running separate election systems for federal elections and for all other elections, the States were receptive to the proposing of an Amendment by Congress to establish a minimum age qualification at 18 for all elections, and ratified it promptly. 4