Vail Daily column: What the Constitution says | VailDaily.com
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Vail Daily column: What the Constitution says

Editor’s note: This is the 15th part of a series.

With the 25th through 27th Amendments, we come to the end of the Constitution. But it is an end with a postscript — one day, it will almost surely change. At some point in the near or distant future, a 28th, then 29th, then 30th Amendment will be teed up and adopted by the states. What those future amendments may be are anyone’s guess, and in the last part of this series, we will look at how the Constitution is and has been employed, how it is sometimes deployed and what the future of an amendment might hold. For now, though, with a bank shot to the corner pocket of this opus magnum of American jurisprudence, this rock upon which the nation and its freedoms and perspectives were based, let’s look first at the last additions.

PRESIDENTIAL SUCCESSION

Rather than finishing with a bang as we near the end of the Constitution as it now stands, the 25th Amendment is a bit of a wet firecracker. It is, essentially, a housekeeping measure that cleaned up what appeared to be some ambiguities in Article II providing for presidential succession.

The 26th Amendment which was both passed and ratified in 1971 arose out of the youth movement of the mid-to-late 1960s. That and the horror of the Vietnam War … gave rise to a call that went something like, “If we’re old enough to fight and die, we should be old enough to vote.” Fair is fair, the nation agreed.

Owing to the John F. Kennedy tragedy and the Richard Nixon disgrace (both occurring during many of our lifetimes), we know that if the president dies, resigns or is removed from office, the vice president takes their place.

What you may not know, however, is that if the vice president dies, resigns (think Spiro Agnew) or is removed from office, the president can choose a new VP, subject to confirmation by Congress (think Vail’s own Gerry Ford who, history will record, is the only person to serve as both vice president and president who was elected to neither office).

What’s more, if the president submits written notice that he is no longer able to carry out the duties of his office, for whatever reason (which many will argue the impaired Woodrow Wilson should have done), the VP takes over.

Last but not least, if the VP and a majority of the Cabinet agree that the president is no longer capable of carrying out the duties of his office, the VP can temporarily take over as acting president. If the president disputes his removal from office, the Congress must decide whether the president should regain the powers of his office or whether the VP should remain in charge. This last has never happened, but with the Nixon-Agnew-Ford succession, the 25th Amendment has at least once expressed its practical application.

CHANGING THE VOTING AGE

The 26th Amendment which was both passed and ratified in 1971 arose out of the youth movement of the mid-to-late 1960s. That and the horror of the Vietnam War, where teenagers were drafted and marched out to the swampy battlefields of Southeast Asia, gave rise to a call that went something like, “If we’re old enough to fight and die, we should be old enough to vote.” Fair is fair, the nation agreed.

With the 26th Amendment’s adoption, the voting age was lowered from 21 to 18, where it now remains. This precedent set, there are those who have argued, “If we are old enough to fight and die, we should be old enough to buy a beer,” arguing that the legal drinking age should likewise be lowered. So far, though, the nation has found the latter argument less compelling and with drinking age, state law has ruled the roost.

OUT WITH A WHIMPER

The last of the amendments — as the last of the Constitution as it is currently constructed — is the 27th Amendment. Sorry, it ends with a bit of a whimper.

The 27th Amendment, ratified quietly in 1992, holds simply that “No law, varying the compensation for the services of the senators and representatives, shall take effect, until an election of representatives shall have intervened.”

In plain terms, what this means is that members of Congress are barred from voting to give themselves a pay raise. While they may vote to raise congressional pay, such increases may not take effect until the next succeeding session of Congress.

Perhaps more interesting than the Amendment itself is its history. The 27th Amendment was one of the original package of 12 passed by the first Congress in 1789. As we previously noted, however, only 10 of those 12 made the cut and gained ratification in 1791; those 10 have been known ever since as the Bill of Rights. But this amendment waited in a state approaching constitutional purgatory for more than 200 years before finally stepping up to the plate and gaining the necessary ratification from three-quarters of the states before finally becoming law.

AN EVOLVING DOCUMENT

You will see from our review that the Constitution is, in parts, grand and exalting and, in others, rather mundane and ministerial. While more than 11,000 amendments have been proposed, only 27 have been adopted and, some would argue, only a handful of them — the first and 14th certainly among them — soar.

In the last part of this series, we will see how the Constitution is applied, twisted, tortured, evoked, evolves and what the bare frontiers for future amendment may be.

While strict constructionists insist that the Constitution must be interpreted in the context of the times in which it was brought forth, what is undeniable, regardless of one’s point of view, is that interpreted it has been and is. And in that respect, at the least, it is a living, breathing instrument that informs, instructs and strengthens our ever-developing democratic republic.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.


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