When you need an amendment

We have one unratified amendment left, and then some other laws, but I wanted to stop and focus on when you might have an amendment.

With the first 10 amendments in the Bill of Rights, there was a need to put in the values that were important to the nation that had just set up how it would run. Shortly after that, there is some fine-tuning to be down; this process isn't specific enough, or we forgot to address this issue that has come up now. That is the case for the 11th and 12th, and for the 27th, though ratification was delayed.

Sometimes the amendment is to grant a power not previously specified. The 18th for Prohibition gave the Federal government power to do something they did not previously have the power to do. Now it seems like the silliest amendment, requiring a new amendment to repeal it (the 21st).

The failed Child Labor amendment from last week stems from an inability to regulate interstate commerce in the needed way, to an attempt to instead of regulating the commerce, simply making the protection of children and labor laws regarding them a federal matter.

Many of the successful amendments have been to extend rights and protections. We did not grant this group full citizenship before, and it was wrong of us. A lot of additional legislation has been in support of that.


There may sometimes be confusion over why things work in certain ways. For example, with the 13th, 14th, and 15th amendments, it was established that not only was slavery not allowed but Black men could vote and were citizens (with Black women still having to wait until the 19th).

There were still many obstacles to the enjoyment of that citizenship. In time that led to the Civil Rights Act (which included the Fair Housing Act) and Voting Rights Act. Without judging their efficacy here, the key issues were nonetheless seen as something that was already constitutional.

It seems like that could have been true for the abolition of the poll tax as well, but that did get an amendment, the 24th. It had previously been argued that the poll tax went against the Equal Protection clause, which certainly sounds reasonable.

Perhaps it was different because people had been talking about it for longer, with opposition to state poll taxes being offered by FDR, continued investigation under Truman, and urging for the amendment from JFK. There were arguments that the laws imposing the poll tax were based on the Constitution, and it could be seen as a states' rights issue.

It may only obfuscate the issue to remember that both Plessy v Ferguson and Brown v Board of Education treated "separate but equal", and they came down on different sides.

I don't know that I can provide much additional clarity, but one thing to remember is that if you study almost any amendment, there is at least one associated legal case that got people thinking about the issue, and whether the current laws were sufficient or even correct. Even with the amendments from the Bill of Rights, there were legal examples of problems that had happened under British rule that inspired them.

Beyond that, sometimes a law that should be sufficient isn't. That may be because there are too many people who don't believe in it. When that is the issue, passing the new legislation will probably not resolve the issue, but it may still provide an avenue for recourse that can be valuable.

But really what you need is better people. We should always be working on that.