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The 26th Amendment and the Progressive Constitution

March 24, 2011

Forty years ago this week, the 26th Amendment to the U.S. Constitution was approved by Congress and proposed to the states for ratification.  In less than four months, 18-year-olds were guaranteed the right to vote when North Carolina made it official on July 1, 1971 – the shortest amount of time yet for any proposed Amendment to be ratified.

The text of the Amendment is straightforward:

Section 1. 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.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The speedy ratification of the 26th Amendment, however, obscures a much deeper story, one that helps illustrate the progressive arc of our Constitution and of our character as a nation.

As far back as World War I, veterans who were conscripted into military service during their teenage years were crying out to their fellow Americans: “Old enough to fight, old enough to vote!”  Decades later, the children and grandchildren of those veterans fought against fascism in World War II, and repeated the call of their parents and grandparents, leading President Eisenhower – the former General and Supreme Allied Commander – to call for an Amendment to the  Constitution to guarantee 18-year-olds the right to vote.  In his 1954 State of the Union message, speaking with more authority on the sacrifices required by military service than perhaps any President since Grant, Eisenhower said, “For years our citizens between the ages of 18 and 21 have, in time of peril, been summoned to fight for America. They should participate in the political process that produces this fateful summons. I urge Congress to propose to the States a constitutional amendment permitting citizens to vote when they reach the age of 18.”

Yet almost two decades after Eisenhower’s declaration, according to Yale Law School Professor Akhil Amar, a combination of the civil rights and voting rights movements, a vibrant new youth culture, and the debate over the war in Vietnam were the ingredients that re-generated the calls of “old enough to fight, old enough to vote,” heard more than 50 years before. “The three great currents of the late 1960’s swirled together in complex ways,” Prof. Amar has written. “Young Americans thronged the streets to demand peace and justice, infusing both [antiwar and civil rights] movements with their unique energy and charisma.”  With the war in Vietnam raging  – eventually taking the lives of more than 58,000 Americans, 25,481 of whom were between 18 and 21 – the steady civic and moral drumbeat in favor of youth suffrage simply became too loud to ignore.

In 1970, Congress added a provision to the extension of  the Voting Rights Act of 1965 to give 18-year-olds the right to vote.  President Nixon, though supportive of this measure, noted in his signing statement his concerns about its constitutionality: “Although I strongly favor the 18-year-old vote, I believe – along with most of the Nation's leading constitutional scholars – that Congress has no power to enact it by simple statute, but rather it requires a constitutional amendment.”  When the measure was tested in the courts, the Supreme Court agreed with Nixon’s position, at least in part.  In its 1970 decision in Oregon v. Mitchell, the Court held that while Congress had the power by statute to apply a minimum age requirement to federal  elections, it could not do so for state and local elections.

That proved to be the last straw.  Less than three months later, both houses of Congress had proposed to the states for ratification the language of the 26th Amendment, which is part of our Constitution today.

The adoption of the 26th Amendment is a perfect example of the arc of our Constitution’s progress.  Ann Coulter’s recent call to repeal the Amendment is a perfect illustration of how self-described “constitutional conservatives” love the Constitution, except for the parts they want to remove.  Yet it is the whole Constitution – including all 27 Amendments ratified by “We the People” over the past 220 years – that commands the reverence of Americans young and old.