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March 2017 Policy Study, Number 17-5

   

A Commentary on the American Constitution

   

Part 18

   

 

Article V concerns the process of amending the Constitution.  At any rate, this is the subject matter with which most people dwell upon when examining this Article.  Though this subject is not entirely without interest, the provisions for amendment are well understood and well settled.  As there are some questions to be raised about the ratification process of the original Thirteenth Amendment (see Article I, Section 10), the Sixteenth Amendment (income tax), and possibly others, the act of dutiful compliance is another matter; but that is not the subject of this essay. 

 

The more interesting portions in this Article are to be found in the exceptions expressed in the final two clauses:

 

 . . . Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth section of the first Article . . . and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

 

The former clause prohibits specified acts for a limited period of time.  The latter prohibits a specified act in perpetuity. In the former clause, the objects of our current interest are the first and fourth clauses of Article I, Section 9.  The first concerns immigration and the importation of slaves.  The fourth once again addresses the subject of a direct tax and the manner in which it was directed to be implemented, which was based on a census.  This was the significance of conjoining the references of these two clauses in Article V. 

 

Our Founders were well aware of the propensity for governments with the power to tax, to engage in “a little hanky-panky” when it came to the exercise of that power.  Their intent was to interdict any such behavior.  If you will recall, these essays addressed the matter of the direct tax at Article I, Section 2 and Article I, Section 8, Clause 1, where the distinction between a direct tax and other indirect taxes was drawn, and also at Article I, Section 9, Clause 4.  In Article V, our Founders demonstrate, yet again, their unease and hesitancy to vest government with the power to tax, especially in regard to the method of a direct tax.  It was stated that by the letter of the law, the courts have determined the income tax to be of the indirect variety.  It was also opined that, even if this were the case, because of the way the income tax is implemented and enforced and of the results it produces, it behaves more nearly like a direct tax than an indirect tax and its consequences are just as unwelcome.  If it were possible, I would be extremely interested to behold our Founders’ reaction to this scheme of taxation upon its introduction to them.  I sincerely doubt it would be favorable.

 

Now for the latter clause, “ . . . no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”  This is another one of those areas where what is not said is as significant as what is said.  This is profoundly important because, in order for proper understanding of this phrase, we must discover the precise meaning of our Founders’ use of the word “state.”  Like the term “United States,” the term “state” has multiple definitions.  It can be the physical geographic state, the body of citizens that comprise the state and its government, or the corporate entity that is the governing body of the state.  A corporation is an entity created at law and is an entity separate and distinct from any of the stockholders; or, as in the case of the “state” entity, it is separate and distinct from the citizens.  For instance, the “State of Iowa” is the corporate title of my home state.  My family resides in the “state (sic) of Iowa.”  It is not possible for anyone to reside in the “State of Iowa.”  Which meaning of the term “state” is to apply?

 

It should be safe to exclude the geographic sense of the term upfront.  That leaves meanings two and three.  Notice they did not say, “no State or the people thereof;” it is merely, “no State.”  This would not automatically exclude the second meaning, but neither would it automatically include it, as would “or the people thereof.”  Most importantly for this discussion, it does not exclude the third meaning — the entity of the corporate state.  Using only the information contained in Article V, it does not seem possible to reach any unarguable conclusion.  Therefore, we must look to other areas of the Constitution, history, and the spirit of the debates, for enlightenment.  In the original, unamended version of the Constitution passed by the Continental Congress and ratified by the then-existing states, Article I, Section 3 stated: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . . . ”  (Emphasis added).  This is the original design for the election of Senators endowed to us by our Founders.  The Seventeenth Amendment has since replaced it, and United States Senators are now elected by popular vote in the same manner as United States Representatives.

 

In the section immediately following, Article I, Section 4, we find:

 

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.  (Emphasis added).

 

Ask yourself, why would our Founders structure senatorial elections differently than those of Representatives?  That this distinction must have been fairly important to them is evidenced by the fact that they went out of their way to safeguard their original design found in Section 3, with the exception they placed in Section 4.

 

The answer can be found if we will briefly address history.  In the early part of this continent’s development, the states’ relationships with each other were more like that of nations.  That is, they were independent and sovereign, one from another, notwithstanding their respective relationships with Great Britain.  They were able to establish their society in the manner that best suited their needs, and they wanted to keep it that way.  In due course, they did form a federation (alliance) under the Articles of Confederation.  But, as you remember, this federation failed because of the weakness resulting from the fact that the states refused to empower the federation by relinquishing appropriate power to the federation.  They understood that, for them to have an effective union, this would have to change.

 

Even so, being jealous guardians of their current liberty, they determined to cede none of their sovereignty to the new Union and only so much of their independence as was absolutely necessary for the success of the union.  (Sovereignty here meaning the state or station of being an equal among equals and masters of themselves.)  The entity of the state itself was to be represented in the new Union.  And it was the Senators who were to represent the interests of the state.  This was their method of protecting their current sovereignty and also of protecting that rather large portion of independence the respective states determined to retain.  Their concern was one of maintaining due influence over the new central government.  They had no intention of allowing even the possibility of trading the abuses engendered by Great Britain for those of a different master.  It would seem they had an appreciation for history that we currently disdain.

 

   

 

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