These trends suggest that whatever window of opportunity to remedy the problem of unequal representation might exist, it is shrinking. The American population is becoming increasingly centralized in a smaller number of states. See Dept. Post Nov. Half of the population will be represented by just sixteen senators, the other half by eighty-four. Of course, states have never been equal in size, and as James Madison noted, small and large states do not necessarily have anything substantive in common.
See Feldman , supra note 20, at — The concentration of people in large states is not enough to necessarily skew public policy significantly. Increasingly, however, small and large states are divided in a manner that is qualitatively different than the past. Or perhaps it is a random coincidence. In any case, the trend is causing the federal government to act on behalf of a smaller percentage of the public. For most of American history, it was relatively rare for a bill to pass the Senate without support from senators representing the majority of Americans.
Most votes passed with around two-thirds of the Senate in favor, with those senators representing two-thirds of the population. But in , for the first time ever, nearly half of the bills and nominations passing the Senate were supported by senators representing less than half of the population.
Jacob S. For the same reason it is hard for a man to see where he placed his glasses, it is hard for a democracy to fix its political process.
Problems embedded in the democratic process resist change because the problem itself is an obstacle to its solution. Washington, D. See Washington D. These challenges are even greater when the problems are in the Constitution itself, which requires supermajorities to amend.
Article V provides two mechanisms for amending the Constitution. Congress may propose an amendment with a two-thirds majority in each chamber, or two-thirds of the states may call for a constitutional convention and propose new amendments there.
In either case, three-fourths of the states must subsequently ratify any new amendments before they take effect. These thresholds make it highly unlikely that the problem of unequal representation will be fixed through the normal amendment process. Given these challenges, some might say that the problem of unequal representation is simply an intractable part of the U.
See , e. But surely those same things were said about other daunting inequities in voting rights, like the disenfranchisement of women and racial minorities. By recognizing the fundamental unfairness of the present arrangement, the nation might become motivated to fix it, and perhaps, motivated enough to think creatively about solutions.
The first step in the process is the addition of new states. Although new states could theoretically come from anywhere, for a few reasons, the District of Columbia is an ideal location to enact this proposal.
First, Washington, D. Second, every measurable subdivision of D. Matthew Bloch et al. Third, the neighborhoods of D. Using figures from the last time Democrats had unified control of the federal government, and assuming a party-line vote, the minimum number of new states would be ninety-six.
The actual admission of the new states would be relatively simple. First, it would be necessary to shrink the federal district to a small area encompassing only the National Mall and the essential federal buildings. This has already been done once, when in Congress shrank the district and gave land west of the Potomac River back to Virginia. Act of July 9, , 9 Stat. Only this time, the land would not be ceded; it would remain federal territory outside the federal district.
Congress could then admit any number of new states by delineating their borders and providing for elections for new congressional delegations. The Washington, D. Admission Act, H. Once the new states are admitted, it will be easier to pass new amendments. The new amendments would ensure that each vote cast in a federal election counts equally. A fourth amendment would modify Article V to ensure that this scheme could not be repeated.
But there is a straightforward solution. Imagine, for example, a system where the Senate resembles the House of Lords, the largely ceremonial upper chamber in the United Kingdom. The Senate could review legislation passed by the House but not prevent it from becoming law. Its formal powers would be transferred either to the House or to a new, equitably apportioned body.
As a practical matter, since gutting the Senate essentially asks senators to vote themselves out of a job, it might be more palatable for them if a new legislative body were created contemporaneously. A second legislative chamber, at least in theory, also provides the benefits of bicameralism. The power to pass legislation, confirm appointments, ratify treaties, and try impeachments should belong to a body that represents citizens equally. The Senate might maintain oversight responsibilities and be a place where the unique concerns of state governments are communicated to Washington, but it should no longer play a determinative role in the federal government.
First, it would ensure that the body represents all Americans, not simply those who live in states. Second, it would constitutionalize a minimum size for the House of Representatives, such that the representative-to-population ratio for House districts would be determined by the population of the smallest-population state.
Steven L. If territories had congressional representation, fairness would dictate basing the ratio off the lowest-population state or territory , though this would dramatically increase the size of the House. In the event that states are unable to conclusively certify election results, or the results of the election are otherwise disputed, the House of Representatives, voting as individuals, could determine the next President and Vice President. Remove the Influence of States in the Amendment Process.
The language in Article V that allows for two-thirds of the states to call a constitutional convention and that requires three-fourths of the states to ratify new amendments should be changed to ensure that those states actually represent a majority or supermajority of the total population.
In other words, once a fair system of representation is established, the possibility that a small fraction of the population would once again control the federal government should be removed. After amending the Constitution to ensure the principle of equal representation, the new states would presumably be reconsolidated back into one. However, in the new federal government — one based on representation of people, not states — this would concern the rest of the country only to the extent it determined the size of the House.
Objections to this proposal can be sorted into two buckets: those about the legality of the proposal, and those about its desirability even if it were possible. Both are addressed below. In terms of legality, objections about changes to both the District of Columbia and the Senate can be addressed and situated in American history. In terms of desirability, it can be shown that a system of fair and equal representation is compatible with the hallmarks of the American political system and that these values do not require treating some as second-class citizens.
District of Columbia. Hewitt Pate, D. But this stretches the text of the Constitution considerably. Indeed, Congress has already shrunk the size of the district once, ceding land back to Virginia in Statehood , 60 Geo.
See Pate, supra note , at 5. Putting aside the fact that Maryland might give its blessing, the plain language and purpose of the original cession made clear that Maryland would have no future interest in the land it ceded to the federal government.
Raven-Hansen, supra note , at By shrinking — not removing — the federal district, Congress could create an area of federal territory outside the federal district, but not belonging to any state. Nothing would stop it from creating new states there. Entrenchment Clause. The outlined proposal offers a way around the Entrenchment Clause by retaining equal suffrage of states, but stripping the Senate of its power.
It is admittedly a hyper-formalistic dodge. Should it be allowed? If it is not, the provision is essentially unamendable. And that ought to be a concern. However, Senate Republican leaders have threatened to mount a filibuster to block the passage of the statehood bill. It remains unclear whether the bill even has the backing of all 50 Democratic senators, let alone the 60 needed to break a filibuster and pass it.
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Apply market research to generate audience insights. Measure content performance. Develop and improve products. List of Partners vendors. Share Flipboard Email. Issues The U. Legal System U. Foreign Policy U. Liberal Politics U. Robert Longley. History and Government Expert. Robert Longley is a U. Facebook Facebook. Anything you do say can be used against you in a court of law. Even if a person is guilty of a crime, the Fifth Amendment demands that the prosecutors come up with other evidence to prove their case.
If police violate the Fifth Amendment by forcing a suspect to confess, a court may suppress the confession, that is, prohibit it from being used as evidence at trial.
There are, however, limitations on the right against self-incrimination. For example, it applies only to testimonial acts, such as speaking, nodding, or writing. Other personal information that might be incriminating, like blood or hair samples, DNA or fingerprints, may be used as evidence.
Similarly, incriminating statements that an individual makes voluntarily— such as when a suspect confesses to a friend or writes in a personal diary— are not protected. Right to Due Process: The right to due process of law has been recognized since , when the Magna Carta the British charter was adopted.
Historically, the right protected people accused of crimes from being imprisoned without fair procedures like indictments and trials, where they would have an opportunity to confront their accusers. The right of due process has grown in two directions: It affords individuals a right to a fair process known as procedural due process and a right to enjoy certain fundamental liberties without governmental interference known as substantive due process.
In the adoption of the Fourteenth Amendment expanded the right of due process to include limits on the actions of state governments. Takings Clause: The takings clause of the Fifth Amendment strikes a balance between the rights of private property owners and the right of the government to take that property for a purpose that benefits the public at large.
When the government takes private property, it is required to pay just compensation to the property owner for his or her loss. The takings power of the government, sometimes referred to as the power of eminent domain, may be used for a wide range of valid public uses for a highway or a park, for example.
For the most part, when defining just compensation, courts try to reach some approximation of market value. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
Right to a Jury Trial: In a criminal case, the government prosecutes or charges a defendant with a violation of the criminal law and begins proceedings bail hearings, arraignments and trials to prove that charge beyond a reasonable doubt. The Sixth Amendment provides many protections and rights to a person accused of a crime.
One right is to have his or her case heard by an impartial jury— independent people from the surrounding community who are willing to decide the case based only on the evidence. In some cases where there has been a significant amount of news coverage, the Supreme Court has ruled that jury members may be picked from another location in order to ensure that the jurors are impartial.
When choosing a jury, both prosecutors and defense attorneys may object to certain people being included. Some of these objections, called challenges, are for cause the potential juror has said or done something that shows he or she may not act fairly. Others are peremptory no real reason need be given, but one side does not want to have that person serve.
Lawyers cannot use peremptory challenges to keep people off a jury because of race or gender. Right to a Speedy Trial: This right is considered one of the most important in the Constitution. Without it, criminal defendants could be held indefinitely under a cloud of unproven criminal accusations. The right to a speedy trial also is crucial to assuring that a criminal defendant receives a fair trial.
If too much time elapses between the alleged crime and the trial, witnesses may die or leave the area, their memories may fade, and physical evidence may be lost. The Public Trial Guarantee: Like the right to a speedy trial, the right to a public trial serves the interests of both criminal defendants and the public. Defendants are protected from secret proceedings that might encourage abuse of the justice system, and the public is kept informed about how the criminal justice system works.
Like most constitutional protections, however, the right to a public trial is not absolute. A criminal defendant may voluntarily give up waive his or her right to a public proceeding or the judge may limit public access in certain circumstances. For example, a judge might order a closed hearing to prevent intimidation of a witness or to keep order in the courtroom.
A speedy, public trial that is heard by an impartial jury is meaningless if a defendant is left in the dark about exactly the crime with which he or she is charged.
Rather, it requires that prosecutors put their witnesses on the stand, under oath. Supreme Court explained in its opinion, California v. There are exceptions to the confrontation clause, of course. If a knowledgeable witness is unavailable at the time of trial, for example, a previous statement will be allowed into evidence, so long as the witness made it under conditions that were similar to those at trial for example, if the statement was made under oath.
Defendants also may be prevented from confronting witnesses against them when the well-being of the witness is at issue. Right to Assistance of Counsel: The Sixth Amendment guarantees a criminal defendant the right to have an attorney defend him or her at trial.
The right to counsel is more than just the right to have an attorney physically present at criminal proceedings. The assistance provided by the attorney must be effective. This does not mean that the defendant has a right to an attorney who will win his or her case. A defendant can receive effective assistance of counsel and still be convicted and sent to jail. This provision does not guarantee the right to an attorney in most civil cases. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
The Seventh Amendment extends the right to a jury trial to federal civil cases such as car accidents, disputes between corporations for breach of contract, or most discrimination or employment disputes. In civil cases, the person bringing the lawsuit the plaintiff seeks money damages or a court order preventing the person being sued the defendant from engaging in certain conduct.
For example, the right to a jury trial applies to cases brought under federal statutes that prohibit race or gender discrimination in housing or employment. But importantly, the Seventh Amendment guarantees the right to a jury trial only in federal court, not in state court.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. No Excessive Bail: The first portion of the Eighth Amendment concerns bail— the money paid by a defendant in a criminal case in exchange for his or her release from jail before trial. Bail is returned to the defendant when he or she appears at trial but is forfeited to the government if he or she does not appear. In this way, bail provides an incentive for a defendant to remain in the area and participate in the trial.
Bail also promotes the ideal of being innocent until proven guilty, in that a defendant is not punished with jail time before he or she actually has been convicted. Bail also assists a defendant in preparing his or her case for trial, for it is far more difficult to consult with counsel when one is in police custody.
The Eighth Amendment however, does not guarantee an absolute right to be released on bail before trial. Supreme Court has identified circumstances when a court may refuse bail entirely, such as when a defendant shows a significant risk of running away or poses a considerable danger to the community. Prohibition against Cruel and Unusual Punishment: The better-known component of the Eighth Amendment is the prohibition against cruel and unusual punishment.
Although this phrase originally was intended to outlaw certain gruesome methods of punishments— such as torture, burning at the stake, or crucifixion— it has been broadened over the years to protect against punishments that are grossly disproportionate to meaning much too harsh for the particular crime. Except for a brief period in the s, the death penalty has not been considered by the U.
Supreme Court to be cruel and unusual punishment. As a result, Eighth Amendment challenges to the death penalty have focused on the methods used to carry out executions, whether certain offenders for example, juveniles or the mentally retarded should be subject to the sentence and whether death sentences are decided in a fair manner and by an impartial jury.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. The Ninth Amendment is a constitutional safety net intended to make clear that individuals have other fundamental rights, in addition to those listed in the First through Eighth Amendments.
Some of the framers had raised concerns that because it was impossible to list every fundamental right, it would be dangerous to list just some of them for example, the right to free speech, the right to bear arms, and so forth , for fear of suggesting that the list was complete. This group of framers opposed a bill of rights entirely and favored a more general declaration of fundamental rights. But others, including many state representatives, had refused to ratify the Constitution without a more specific list of protections, so the First Congress added the Ninth Amendment as a compromise.
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. The Tenth Amendment was included in the Bill of Rights to further define the balance of power between the federal government and the states. The amendment says that the federal government has only those powers specifically granted by the Constitution. These powers include the power to declare war, to collect taxes, to regulate interstate business activities and others that are listed in the articles.
Any power not listed, says the Tenth Amendment, is left to the states or the people. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
After the U. Supreme Court ruled in that two South Carolina men could sue and collect debts from the State of Georgia, states-rights advocates in Congress and the states pushed for what became the Eleventh Amendment in The amendment specifically prohibits federal courts from hearing cases in which a state is sued by an individual from another state or another country.
The amendment did not bar all lawsuits against states in federal courts. For example, as initially interpreted, the Eleventh Amendment did not bar suits against states when a matter of federal law was at issue nor did it prevent suits brought against a state by its own citizens. But more recently, a divided Supreme Court has held that states are immune from all lawsuits in federal courts unless they specifically agree to be sued.
But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.
But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. Approved by Congress on December 9, , and ratified by the states on June 15, , the Twelfth Amendment modifies the way the Electoral College chooses the president and vice president.
Article II, Section 1 of the Constitution, which established the Electoral College, provided that each state appoint electors equal to the total number of House and Senate members in their state and that the electors shall vote for two persons. The presidential candidate who received the most electoral votes won the presidency; the runner-up became the vice president. In , this meant that the president and the vice president were from different parties and had different political views, making governance more difficult.
The adoption of Amendment XII solved this problem by allowing each party to nominate their team for president and vice president. The inhabitant clause of the Twelfth Amendment also suggests strongly that the president and vice president should not be from the same state.
Although the provision does not directly disqualify a vice president who is from the same state as the president, the provision disqualifies the electors from that state from voting for both offices.
Prior to the election, both presidential candidate George W. Bush and vice presidential candidate Dick Cheney lived in and voted in Texas. To avoid problems with the inhabitant clause, Cheney registered to vote in Wyoming, where he previously lived. The Twelfth Amendment also specifies how the president and vice president are to be selected should neither candidate obtain the votes of a majority of the electors: the House of Representatives selects the new president from the top three candidates.
This is a slight variation from the original provision, which allowed the choice from among the top five candidates.
However, the vote within the House is by state, not by representative. This gives equal weight to all states— the smaller, less populated states as well as the larger, more populated ones— and makes it more likely that the ultimate winner may not be the candidate who obtains the majority of the popular vote.
Lastly, this amendment extends the eligibility requirements to become president the candidate must be a natural born citizen, must be at least thirty-five years old, and must have been a resident of the United States for fourteen years to the vice president since no person who is constitutionally ineligible to be president can be vice president. Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
In , based on his war powers see Article II, Section 2 , President Lincoln issued the Emancipation Proclamation, which freed the slaves held within any designated state and part of a state in rebellion against the United States. Following the end of the fighting, on February 1, , Congress passed the Thirteenth Amendment and forwarded it to the states. It was ratified on December 18, The Thirteenth Amendment was the first of three Reconstruction Era amendments the Thirteenth, Fourteenth, and Fifteenth that eliminated slavery, guaranteed due process, equal protection and voting rights to all Americans.
By its adoption, Congress intended the Thirteenth Amendment to take the question of emancipation away from politics. In more recent cases, the Supreme Court has defined involuntary servitude broadly to forbid work forced by the use or threat of physical restraint or injury or through law. But the Supreme Court has rejected claims that define mandatory community service, taxation, and the draft as involuntary servitude.
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.
But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Because many states continued to pass laws that restricted the rights of former slaves, on June 13, , Congress passed and sent to the states for ratification, Amendment XIV.
Ratified on July 9, , the amendment granted U. These limitations on state power dramatically expanded the protections of the Constitution. Prior to the adoption of the Fourteenth Amendment, the protections in the Bill of Rights limited only the actions of the federal government, unless the provision specifically stated otherwise. This has meant that the Fourteenth Amendment has been used more frequently in modern court cases than any other constitutional provision.
Dred Scott, born into slavery, argued that he should be granted freedom from the family that claimed ownership over him because he had lived in free states and thus had become a citizen of the United States before returning to Missouri, a state where slavery was sanctioned. Many Native Americans became citizens by a variety of means such as marriage, treaties, or military service.
But with the passage of the Indian Citizenship Act of , Congress granted the rights of citizenship to all Native Americans. Privileges and Immunities: Within five years of its adoption, the privileges and immunities clause of the Fourteenth Amendment was interpreted very narrowly by the U.
Supreme Court. In In Re Slaughter House Cases , the Court rejected the argument that the provision gave the federal government broad power to enforce civil rights, finding that to do so would infringe on a power that had and should belong to the states.
Subsequent cases have recognized several federal privileges such as the right to travel from state to state, the right to petition Congress for a redress of grievances, the right to vote for national officers, and so forth, but other efforts to broaden the meaning of this clause have been rejected.
Often thought of as a provision that guarantees fairness, the due process clause requires government to use even-handed procedures, so that it is less likely to act in an arbitrary way.
Liberty, the Court held in Meyer v. Equal Protection of the Laws: Although the Declaration of Independence declared that all men were created equal, many persons living in our early republic, including Native Americans, African-American slaves and women were denied fundamental rights and liberties such as the right to vote, own property and freely travel.
The equal protection clause limits the ability of states to discriminate against people based on their race, national origin, gender, or other status. For example the clause has been used to guarantee voting rights, school integration, the rights of women and minorities to equal employment opportunities and the rights of immigrants to attend public school.
The extensive history of litigation under the equal protection clause in fact mirrors the struggle for civil rights of all Americans. Amendment XIV, Section 2 eliminated the three-fifths rule, specifically stating that representation to the House is to be divided among the states according to their respective numbers, counting all persons in each state except Native Americans who were not taxed.
The provision also punished states that did not let all males over the age of 21 vote by reducing their population for purposes of representation in Congress. With the adoption of the Nineteenth Amendment in , the right to vote in federal elections was extended to women. But language in this section has been used to support the constitutionality of state laws than deny felons the right to vote.
Both Sections 3 and 4 of the Fourteenth Amendment affected persons who waged war against the Union during the Civil War and the obligations of those states who had been part of the Confederacy. Amendment XIV, Section 4 allowed the federal and state governments to refuse to pay war debts of the Confederate army as well as any claims made by slave owners for their losses when slaves were freed.
This gives Congress the power to pass laws that protect civil rights, such as the Civil Rights Act of or the Americans with Disablilities Act of The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
The Fifteenth Amendment prohibits the use of race in determining which citizens can vote and how they do so. The last of three so-called Reconstruction Era amendments ratified in the period following the Civil War, the amendment sought to abolish one of the key vestiges of slavery and to advance the civil rights and liberties of former slaves. Section 2 of the amendment gives Congress the power to enforce it by enacting federal egislation that ensures racial equality in voting. The ratification of the Fifteenth Amendment in had little impact for almost a century because states imposed poll taxes, literacy tests, and other restrictions that kept African Americans from voting.
But the passage of the Civil Rights Act of and the Voting Rights Act of , along with a number of Supreme Court decisions interpreting these laws, have done much to guarantee voting rights for African Americans and other citizens of color.
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. For example, if the people of Delaware were four percent of the U. In , in Pollock v. This provision gives Congress the power to impose a uniform, direct income tax without being subject to the apportionment rule.
It has become the basis for all subsequent federal income tax legislation and has greatly expanded the scope of federal taxing and spending in the years since its passage. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.
The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive when the legislature cannot be convened against domestic violence.
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