Yesterday, after I delivered a talk on the Constitutional Convention of 1787, a gentleman in the book-signing line asked an interesting question: “Which of the constitutional amendments would be most surprising to the Framers?”
I had to stop and think. Then I said, “The Prohibition amendment.” [That’s No. 18, for those who are keeping score at home.]
They would have found it crazy to ban alcoholic beverages. In 1787, Americans drank a lot of beer, whiskey, and wine. They drank everything and anything they could ferment. The water, after all, was not always good. (Outhouses, you know . . . need I say more?) At least one delegate to the Convention — Luther Martin of Maryland — drank alcoholic beverages during their deliberations. Martin, of course, was basically an alcoholic, so that may not be the best example.
Here’s a better one: George Washington — the Man, El Jefe, Numero Uno — actually built a distillery at Mount Vernon for the commercial production of spirits, and it was the best cash business he ever entered. Possibly the only one.
On reflection, there is even a substantive reason why the Framers would have found the 18th Amendment bizarre. It has nothing to do with government, but regulates personal conduct. The Framers, I think, would have found that downright odd.
But the man’s question has stayed with me, so I have come up with a list of five constitutional amendments that would surprise the Framers:
1. The 18th Amendment (I’m already committed to this one).
2. The 12th Amendment — This one changed the way we elect the president. The original Constitution set up the electoral college, with the highest vote-getter becoming president and the runner-up becoming vice-president. The process proved totally unworkable in the elections of 1796 and 1800 and was amended in 1803. Now, the president is chosen from among the candidates for president, and the vice president is chosen separately among the candidates for vice president. The Framers gave almost no thought to the vice presidency; it was a last-minute addition to the Constitution. Their haste and lack of reflection showed.
3. The 14th Amendment, Section 1 — The due process and equal protection clauses would not have surprised the Framers, but I think they would have been startled to find the application of those provisions against the states. This marked a fundamental shift in the structure of federalism, which was justified (in my opinion) by the Civil War.
4. The 19th Amendment (woman’s suffrage) — Women did vote in New Jersey in 1787, but I still think having women vote was not part of the worldview of most of the Framers.
5. The 14th Amendment, Section 3 — This provision bars Congress from repudiating its own debt, or assuming debts incurred by any insurrectionary element of the nation. I think the Framers would be shocked (and disappointed) that these elementary principles required a constitutional amendment.
And you may infer from this that I do not think the Framers would be surprised by the 13th Amendment, freeing the slaves, or the 15th Amendment, barring denial of the vote on race grounds. The Framers well knew that slavery was a sin, that African-Americans in slavery had been treated terribly, and that both situations would have to be dealt with. They hoped they would be dealt with peaceably and gradually. But they knew something would have to be done.
What do you think? Would other amendments have surprised the Framers?