CHAPTER
17

The Twentieth, Twenty-Second, Through Twenty-Seventh Amendments

In This Chapter

• The Twentieth Amendment: lame ducks
• The Twenty-Second Amendment: presidential term limits
• The Twenty-Third Amendment: voting in D.C.
• The Twenty-Fourth Amendment: no tax on voting
• The Twenty-Fifth Amendment: presidential succession
• The Twenty-Sixth Amendment: voting at 18
• The Twenty-Seventh Amendment: congressional pay

Although not as well known as other amendments that are more commonly discussed by the Supreme Court or the subject of news headlines, the most recent amendments to the Constitution are significant for a number of reasons.

Among other things, these amendments set rules for presidential succession, including the two-term limit; provide for District of Columbia residents to vote for president; allow citizens to vote at age 18; prohibit states from charging voters’ fees; and prevent Congress from voting itself immediate pay raises.

The Twentieth Amendment: Lame Ducks

“The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

“The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

“If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

“The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

“Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

“This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.”

Also called the Lame Duck Amendment or the Norris Amendment after its prime mover, Senator George Norris of Nebraska, the Twentieth Amendment changed the dates for the swearing in of the president, vice president, and members of Congress. The Constitution originally set March 3 as the date for swearing in members of Congress and March 4 for the inauguration of the president and vice president. But that was back in the 1700s, when the prime way of getting from one city to another was in a horse-drawn coach bouncing over rutted and often muddy roads and communication was primarily by letter. Consequently, it was presumed that newly elected officials could need weeks, perhaps months, to get their affairs in order and travel to Washington.

This sometimes left a period of 4 months when the outgoing—lame duck—administration and Congress could take action and not be answerable to voters. Even if the outgoing president and Congress did not take any action at all, the 4-month gap left a leadership void while Washington and the nation waited for their new leaders to take office.

We the People

After Abraham Lincoln was elected president in 1860, the 11 Confederate states seceded from the United States on February 4, 1861. But neither Lincoln nor the incoming Congress could do anything about it for a month, until they took office in March 1861.

Before long, of course, the telegraph and then the telephone improved communications, and railroads and then the automobile and better highways improved transportation. The incoming officials did not need months to get to Washington. But cutting down the lame duck period did not become a national issue until the Great Depression began with the stock market crash in 1929. Tired of the Hoover administration, the nation elected Franklin Delano Roosevelt (FDR), with his promises of a New Deal, in November 1932. But FDR had to wait 4 months, until the following April, to launch his eagerly anticipated programs.

In considering the proposed Twentieth Amendment, the Senate Judiciary Committee noted another potential problem with the original March swearing-in dates: if a presidential election was thrown to the House, the election would be decided by the lame ducks rather than the newly elected representatives. “It is quite apparent that such a power ought not to exist,” the committee concluded, “and that the people having expressed themselves at the ballot box should through the representatives then selected, be able to select the President for the ensuing term ….”

The amendment, which changed the inauguration date for president and vice president to January 20 and the swearing-in date for members of Congress to January 3, was ratified in 1933, after FDR took office. He and his first vice president, John Nance Garner, were reelected in 1936, and 2 months later became the first president and vice president to be inaugurated on January 20.

We the People

John Nance Garner, known as Cactus Jack, was one of the real characters in twentieth-century American politics. Married to a woman he defeated for a Texas county judgeship, Garner is remembered for saying the vice presidency was “not worth a bucket of warm spit.” He actually said “a bucket of warm piss,” but that could not be reported in family newspapers.

The Twentieth Amendment also struck down the Constitution’s original requirement for Congress to meet the month after the biennial November elections. Nobody saw much benefit in those lame duck sessions; Congress did not have time to take any meaningful action, and any legislation enacted would not only be hurried but also would be approved by a legislative body whose mandate was expiring. Finally, the amendment said that if a president-elect dies before inauguration, the vice president-elect becomes the president-elect and is inaugurated as president on January 20.

The Constitution originally set no term limits despite the framers’ concerns about a monarchy style of leadership. George Washington probably would have been easily reelected to a third term, and possibly more, but he did not think it was seemly to serve more than two terms. And it wasn’t good for the country, he reasoned. If he served longer than 8 years, Americans might start thinking of him as a king who served for life. And a long-serving president could upset the delicate balance of power among the three branches of government.

We the People

National politics has always been a rich man’s game in America. George Washington, considered one of if not the wealthiest man in the country at the time, refused to take his presidential salary of $25,000 a year—the equivalent of more than half a million in today’s dollars.

None of the early presidents who succeeded Washington considered a third term, either, and a maximum of two terms became a tradition. President Ulysses Grant, elected in 1869 and reelected in 1873, went on a 3-year world tour after his successor, Rutherford B. Hayes, took office. Grant, who had been a much better Civil War general than postwar president, returned from his travels renewed, thinking he had learned much that would make him a better president. Hayes kept his word to serve only one term, so Grant threw his hat in the ring in 1880—insisting that he had honored the tradition against serving three consecutive terms but there was no tradition against him serving a third term after a break. Whether because he was seeking a third term or because he had not been a sparkling president the first time around, the Republicans refused to nominate Grant. James Garfield, a dark horse, was nominated and subsequently elected.

Vice President Theodore Roosevelt became president in 1901 after William McKinley was assassinated only a few months into his second term. Roosevelt was elected to his own full term in 1904 and had served 7½ years by the time he left office in 1909. After a series of lusty pursuits such as going on safari in Africa, Roosevelt formed the Progressive Party and ran for president again in 1912. His third-party bid failed, but he drew enough votes away from the Republicans, his former party, that the Democrat Woodrow Wilson was elected.

Franklin Delano Roosevelt had served two terms in 1940, but the two-term tradition went by the wayside because of his popularity for leading the country out of the Great Depression and because of concerns about a new president coming into office while World War II was heating up in Europe. Roosevelt became the first president elected to a third term. Despite concerns about FDR’s “imperial” presidency and that he might set a new tradition allowing president to feel entitled to serve for life, Roosevelt was elected to a fourth term in 1944, when it became clear that U.S. involvement had tipped the war in the Allies’ favor.

When FDR died and then the war ended in 1945, Congress turned its attention to constitutional term limits for president. Congress approved the Twenty-Second Amendment in 1947, and the states ratified it in 1951. The amendment said no one could be elected president more than twice, even if the terms were not consecutive. In addition, a vice president who moved up to president because of a vacancy could not be elected more than once if the partial term was more than 2 years. The practical effect was that no one could serve more than 10 years as president—up to 2 years of an unexpired term, and then two full terms.

Lyndon Johnson could have become the only president other than FDR to serve more than two full terms. He took office in 1963, with less than 2 years remaining in John F. Kennedy’s first term, and was elected to his own full term in 1964. If he had been reelected in 1968 and served his full term, he would have been president for more than 9 years. He decided against running for reelection amid the turmoil over the Vietnam War.

We the People

When the Twenty-Fifth Amendment was approved in 1951, it specifically excluded the sitting president, Harry Truman, who had succeeded FDR only weeks into Roosevelt’s fourth term. Truman actually planned to take advantage of the exception and run for another full term, but he scrapped his reelection bid after a disappointing showing in the New Hampshire primary.

Proposals to repeal the Twenty-Second Amendment are introduced regularly in Congress, usually by representatives or senators who think the sitting president is doing a wonderful job. One rationale is that every second-term president becomes a lame duck, and the possibility of a third term would preserve some of the president’s authority and accountability. On the other hand, some observers say that second lame-duck term is when presidents can reach their crowning achievements, doing things they might not do if they had to worry about political popularity and being reelected.

Presidents themselves have had mixed thoughts on the Twenty-Second Amendment. In the 1950s, Dwight Eisenhower opposed it, arguing that Americans should be able to elect whomever they want. Bill Clinton, who was only 54 when he left office in 2001, liked the idea of changing the amendment so a former president could serve consecutive terms; leave office; and then return for a third, nonconsecutive term. Incidentally, two other former presidents, Jimmy Carter and George H. W. Bush, could have been elected again because they each lost their reelection bids and served only one term.

The Twenty-Second Amendment does not mention the vice president, but constitutional scholars presume that because the qualifications are the same for both president and vice president, a former president cannot run for vice president and then become president again if a vacancy occurs. Under that reasoning, comedian Al Franken’s tongue-in-cheek idea would not work: Franken suggested that he would run as president with Bill Clinton as his running mate, and as soon as they were sworn in, Franken would resign so Clinton could once again be president.

The Twenty-Third Amendment: D.C. Voting

“The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

“A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

“The Congress shall have power to enforce this article by appropriate legislation.”

The Twenty-Third Amendment gives the District of Columbia electors in the Electoral College, which allows D.C. residents to vote for president and vice president.

George Washington, who started his career as a land surveyor, apparently never envisioned the District of Columbia as a major city when he chose the site to become the seat of the new government. And neither did any of the other founding fathers. They saw it as a place where government workers would serve, rather than where hundreds of thousands would live and work.

The original Constitution said that only the residents of states could vote for president, and the District of Columbia was not a state. This amendment recognized that people really do live and work in the District—and that they were American citizens who were not allowed to vote for president, even though they had all the obligations of citizenship, such as paying taxes and serving in the military. The amendment was approved by Congress in 1960 and ratified by the states in 1961, when the District had a population larger than 13 other states. Today the District’s population is larger than only two states, barely: Wyoming and Vermont.

The amendment put a ceiling on the number of electors the District could have—no more than the state with the smallest population. Because Wyoming and Vermont each has three electors, that’s what D.C. has, too.

We the People

George Washington chose the specific site of the District of Columbia, but the decision to move the nation’s capital from New York was the result of an infamous closed-door dinner meeting attended by Alexander Hamilton, Thomas Jefferson, and James Madison. The meeting has become much better known because of the “The Room Where It Happens” scene in the hit musical Hamilton by Lin-Manuel Miranda. The Compromise of 1790, as it came to be called, let Hamilton, then Secretary of the Treasury, come away with the capability to pay war debts and promote big-city commercial expansion. Jefferson and Madison, both Virginians, came away with much shorter commutes to work.

A proposed constitutional amendment sent to the states in 1978 would have given the District representation in Congress just like a state—a representative and two senators—but that proposed amendment expired, unratified, after 7 years in 1985.

The Twenty-Fourth Amendment: No Tax on Voting

“The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

“The Congress shall have power to enforce this article by appropriate legislation.”

This amendment outlaws the poll tax in federal elections. The poll tax, a fee citizens had to pay to vote or to register to vote, dates to colonial times. The idea was that people who contribute to society, people who were making their way economically and socially, were the ones who should be able to have a say in how the government operates through the vote. Later, it became a way of keeping poor people, especially blacks, from voting.

After Reconstruction, following the Civil War, 11 states in the South enacted poll taxes, largely as a way of keeping black people from voting. By the time the Twenty-Fourth Amendment was approved by Congress in mid-1962, only five states still had poll taxes: Alabama, Arkansas, Mississippi, Texas, and Virginia. The states ratified the amendment outlawing poll taxes in federal elections in early 1964, and the following year, Congress outlawed them again as part of the Voting Rights Act of 1965.

That same year the Supreme Court, in a decision in a Virginia case, Harman v. Forssenius, threw out the state’s attempt to get around the poll tax prohibition. Virginia had a law requiring voters to either pay a poll tax or file a “certificate of residence” 6 months in advance of an election. The high court was unanimous in overturning the law.

The following year, in 1966, in Harper v. Virginia State Board of Elections, the Supreme Court relied on the Equal Protection Clause of the Fourteenth Amendment to extend the ban on poll taxes from federal elections only to state elections, too.

In the original language of the Constitution, Article II says that if the president is unable to carry out his duties, the office “shall devolve upon the Vice President.” But it did not clarify whether the vice president actually becomes president or acting president or remains vice president but does the president’s job. The Twenty-Fifth Amendment, approved by Congress in 1965 and ratified by the states in 1967, clarifies that the vice president becomes the full-fledged president. It also provides for appointing a replacement if the vice presidency becomes vacant and sets out procedures in the event that a president is still alive but is unable to carry out the responsibilities of the office.

A precedent was set the first time a president died in office, when President William Henry Harrison was succeeded by his vice president, who became President John Tyler. Questions remained about procedures in the event of presidential vacancy, disability, or inability to serve, but Congress did not address them until after the assassination of President John F. Kennedy in 1963. But that question was raised: what if Kennedy had survived, incapacitated?

We the People

President Kennedy’s vice president, Lyndon Johnson, was sworn in aboard Air Force One at Love Field in Dallas, the eighth time a vice president had succeeded a president who died in office. Jacquelyn Kennedy, the widowed First Lady, stood at Johnson’s side on the plane as he took the oath of office.

James Garfield, shot by an assassin, had been in a coma for 80 days before he died in 1881, and Woodrow Wilson was an invalid for the last 18 months of his presidency before leaving office in 1921. In either case, the country would have been better served if the vice president had been able to take over, if only temporarily, until it became clear whether the president could recover and resume office. Who would decide if and when a president had recovered sufficiently to resume the office?

While considering presidential succession, Congress also decided to address vacancies in the vice presidency. Besides the eight times a vice president had stepped up to the presidency and left the office vacant, there were seven other occasions when a vice president had died in office and not been replaced. The Twenty-Fifth Amendment gave the president the authority to appoint a vice president, with the confirmation of Congress, if and when the office became vacant.

It did not take long for the Twenty-Fifth Amendment to come into play. Vice President Spiro Agnew resigned amid a scandal in October 1973 and President Richard Nixon, following the procedure laid out in the second section of the amendment, nominated longtime Congressman Gerald Ford, who was promptly confirmed by the House and Senate. When Nixon resigned in disgrace because of the Watergate scandal in August 1974, Ford succeeded him as president. Ford then named former New York Governor Nelson Rockefeller as his vice president.

We the People

Longtime Michigan Republican Congressman Gerald Ford was the first person to serve as vice president, and then the first person to serve as president, without running for either office. When he did run, in 1976, he was defeated by Democrat Jimmy Carter.

If a president cannot fulfill the duties of the office, the president can send a letter to Congress asking to be relieved. The vice president then becomes acting president until the president sends another letter notifying Congress that he is reassuming the duties. If there is no objection from the vice president, the president is back on the job. However, if there is an objection within 4 days from the vice president and a majority of the Cabinet—the heads of the administration’s executive agencies, all appointed by the president—it is up to Congress to decide, by a two-thirds vote of both houses, whether the president is fit enough to be returned to office.

The Twenty-Fifth Amendment lays out a comparable process for removing a president who is unable or unwilling to ask Congress to be relieved of the office. If a president is in a coma, for example, or a president goes crazy—which some wags would say has already happened more than once in U.S. history—the vice president and a majority of the Cabinet can invoke the Twenty-Fifth Amendment and notify Congress that the president is “unable to discharge the powers and duties of his office.” Congress does not need to do anything right away. Instead, the vice president “shall immediately assume the powers and duties of the office as Acting President.” The vice president continues as acting president unless the president objects. Again, Congress then decides by a two-thirds vote whether the vice president should continue to serve as acting president.

When President Ronald Reagan was shot in 1981, he probably should have invoked the Twenty-Fifth Amendment and allowed Vice President George H. W. Bush to serve as acting president, at least while he was in surgery and perhaps in the early stages of his recovery. Bush argued against it, saying he did not want to be seen as usurping the president’s authority. Constitutional scholars, however, say that was exactly the sort of circumstances for which the Twenty-Fifth Amendment had been designed.

The amendment has been invoked at least twice in recent history, and there may be other instances that were never made public. When Reagan had a colonoscopy in 1985, he temporarily transferred power to Bush as acting president. Similarly, in 2002, Vice President Dick Cheney was briefly acting president when President George W. Bush underwent a colonoscopy.

We the People

The government’s top officials—the president, vice president, Cabinet members, and Congressional leaders—all the top people in the line of succession to the presidency—typically all attend the State of the Union Address in January. But one Cabinet member does not attend. Instead, this “designated survivor” or “designated successor” typically spends the evening far away with a large Secret Service contingent and “the football,” the black case with the nation’s nuclear weapon codes. One Cabinet member said he spent the evening in New York, attending the theater and enjoying dinner with family. As soon as the State of the Union was over and the other government leaders dispersed, the Secret Service disappeared and took the football with them back to Washington and the president.

The Constitution does not list the order of succession after the vice president, but the Twenty-Fifth Amendment supplements the Presidential Succession Act of 1947, listing Cabinet offices in the order in which they were created, which sets out the following order of succession:

• Vice President
• Speaker of the House
• President Pro Tempore of the Senate
• Secretary of State
• Secretary of the Treasury
• Secretary of Defense
• Attorney General
• Secretary of the Interior
• Secretary of Agriculture
• Secretary of Commerce
• Secretary of Labor
• Secretary of Health and Human Services
• Secretary of Housing and Urban Development
• Secretary of Transportation
• Secretary of Energy
• Secretary of Education
• Secretary of Veterans Affairs
• Secretary of Homeland Security

The Twenty-Sixth Amendment: Voting at Age 18

“The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

“The Congress shall have power to enforce this article by appropriate legislation.”

Historically, 21 was the age of majority, the age of official adulthood, and the age for voting. But in the 1960s, during the Vietnam War, the age for young men to register for the military draft—and to be drafted, and to go serve, often in Vietnam—was 18. It was not fair, people said, for young men who were giving their lives for their country not to be able to vote for the leaders of that country.

President Lyndon Johnson called for lowering the voting age to 18 in 1968, and Congress did so in 1970, as an extension of the Voting Rights Act of 1965. Oregon appealed, and the Supreme Court upheld the appeal, ruling that Congress had the authority to set the age for federal elections only and not state or local elections.

This presented a dilemma—another issue of basic fairness. It meant that although everyone 18 and older could vote for president, in some states, voters still had to be 21 before they could cast ballots for governor, mayor, or dogcatcher.

Besides the fairness issue, there were logistical problems: with two different sets of voting rolls, state and federal, election officials would have to maintain two sets of records. That would be cumbersome and expensive, and it raised the possibility that we might have two sets of elections, state and federal.

The Twenty-Sixth Amendment was approved by Congress in 1971 and ratified later that year—the fastest approval ever for a constitutional amendment. Most but not all states fell in line by lowering not only the voting age to 18 but also the minimum age for signing contracts and other privileges of legal adulthood.

Along with lowering the voting age, many states also lowered their minimum drinking age to 18. But an increase in drunk driving and traffic deaths among teenagers led to a backlash campaign by Mothers Against Drunk Driving and other groups. In 1984, Congress passed the National Minimum Drinking Age Act of 1984, which threatened states with losing a chunk of their federal highway funding unless they raised the drinking age back to 21.

The Twenty-Seventh Amendment: Congressional Pay

“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.”

This amendment prevents members of Congress from voting themselves pay raises and then starting to collect them immediately. Instead, they have to wait until the next session of Congress, after the next even-year election. The amendment was originally presented to the states for ratification back in the 1700s with the amendments that became the Bill of Rights, but it was ratified by only 6 of the 11 states needed.

That was long before the 7-year time limit for ratification became standard, so in theory, the amendment remained pending, even though most constitutional scholars considered it dead in the water, a historical footnote.

In 1982, a University of Texas sophomore named Gregory Watson was working on a paper for a government course on the Equal Rights Amendment (ERA) when he stumbled onto the still-pending amendment. Intrigued, Watson dropped the ERA and wrote his paper about the amendment, arguing that it was still on the table and that if enough states ratified it, it would become part of the Constitution.

He got a C on the paper. The professor said she didn’t think he had made the case that the amendment was still alive. Undeterred, Watson undertook a one-man campaign, writing to state legislatures and persuading them to take up the amendment and ratify it. Ten years later, in 1992, the amendment was ratified.

The Twenty-Seventh Amendment has largely been ignored by Congress, and it has not kept members of Congress from taking regular cost-of-living increases. But the fact remains: one man, an everyday citizen, amended the U.S. Constitution. Gregory Watson went on to become a researcher in the Texas legislature. When the professor who gave him the C learned that the paper had led to actually amending the Constitution, she apologized to Watson. But it was too late to change his grade.