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The Constitution According To Birch Bayh

The Hoosier Senate icon made his mark on our foundational document, and almost abolished the Electoral College.

Birch Bayh is the only American since the Founders to write two constitutional amendments.Courtesy AP Photo

Indiana’s late U.S. Senator and tireless public servant Birch Bayh was, and remains, the only American to draft multiple amendments to the Constitution. In addition to authoring the 25th Amendment that clarified the formerly unwritten rules on presidential succession, Bayh also drafted the 26th Amendment, lowering the legal voting age to 18 during the Vietnam War. The amendment that got away, however, looms largest over our nation’s history.

Bayh held one of Indiana’s U.S. Senate seats from 1963 to 1981, a feat for a Democrat in such a conservative-leaning state. Almost immediately he used his role as Chairman of the Subcommittee on Constitutional Amendments to drive the ratification of the 25th Amendment in the wake of John F. Kennedy’s assassination. (Its section four, debated at length in the wake of the attack on the Capitol this month, addresses the scenario of the President being “unable to discharge the powers and duties of his office,” a clause Vice President Mike Pence declined to invoke.)

Even more relevant than the 25th Amendment’s “nuclear option” for presidential removal was the next goal to which Bayh turned his attention — abolishing the Electoral College. By 1969, the senator gained strong support in the Senate, and even from President Nixon. In 1970, ratification of the amendment that would establish a national popular vote seemed within reach.

But before too long, key players on the Judicial Committee stalled Bayh’s effort. Sen. Strom Thurmond of South Carolina led the charge in blocking S.J. Res 1, as it was referred to, through a series of strategic parliamentary maneuvers. The excitement in Washington about a national popular vote was not shared by Southern senators, whose states benefited from the electoral college during the antebellum era — the number of electoral college votes per state being roughly based on population, James Madison wanted to make sure that slaveholding states, with larger populations but fewer eligible voters than northern states, had a more equal say to their Northern neighbors in the election of the president. The measure was filibustered in 1970 and again in 1979, leading to its ultimate failure.

Beau Bayh, a Harvard Law student, the son of Indiana’s former Governor and Senator Evan Bayh, and Birch’s grandson, has carried the torch for his grandfather’s cause, saying recently that he “cannot believe in 2020 that we have a system like the Electoral College in our country. It is undemocratic, it is unfair, it is a vestige of our slaveholding past and it needs to go.”

Imagine a world where the Bayhs got their way: only one Republican since 1988 would have won the White House without the Electoral College, George W. Bush in 2004. Imagine Al Gore steering America’s response to the 9/11 attacks and climate change, or the election of Hillary Clinton as the first female President in 2016. (I know, I know, her emails.) Imagine a life without the constant noise of the Trump presidency, a world where the attack on the Capitol this month most likely never would have occurred. We came much closer than most Americans realize.

While Bayh was mustering troops in his fight against the Electoral College, he didn’t waver in his commitment to social justice and civil rights or stop pushing for other constitutional reforms. In 1971 he guided the 26th Amendment through passage and ratification, lowering the legal voting age to 18 with the hope of engaging more young Americans in the electoral process. He also supported the Equal Rights Amendment, which would have added equal protections to all citizens regardless of gender. The effort stalled three states short of the 38 necessary before the eventual 1982 deadline, although a year ago this month Virginia belatedly became the 38th ratifying state — providing women with a bleak reminder that sometimes decades-old deadlines matter more than equality. 

Still, even where others saw failure, Birch Bayh saw an opportunity. Inspired by his father’s physical education background — as well as his wife Marvella’s subtle reminders of what it was like to be a woman in a man’s world — Bayh accomplished the most notable achievement of his career with one sentence added to the Education Amendments of 1972, a holdover from the wreckage of the ERA: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Title IX, as it’s known commonly, has had a significant impact on women’s sports and educational opportunities over its nearly 50 years as law.

Bayh lost his 1980 Senate re-election bid to a Republican named Dan Quayle, who would eventually become George H.W. Bush’s second-in-command. (Remember when correctly spelling ‘potato’ was the biggest problem a vice president faced?) In the 233 years since the nation’s charter was ratified in 1788, only 27 amendments have proven successful (ten of those, of course, coming as a package deal you might know as the Bill of Rights). Constitutional amendments are hard — almost impossible at this point — to come by, but Birch Bayh made an unparalleled mark on America’s foundational document. His legacy will forever live on as part of the supreme law of the land.

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