When Liberals Rewrote the Constitution

Remembering Birch Bayh, whose 1980 bill on government patents Biden invoked this week to combat price gouging by Big Pharma.

The next time you go to a high school women’s basketball game thank the late Indiana Senator Birch Bayh. Bayh, who died in 2019, wrote Title IX, a 1972 amendment to the Higher Education Act of 1965 that said:

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.

Today Bayh (whose son Evan, as Indiana governor and senator, was but a faded copy) seems like he inhabited an unimaginably distant time. Bayh was a liberal who actually got to rewrite the Constitution—one somewhat boring amendment to deal with vice-presidential succession and one highly significant amendment lowering the voting age to 18. Less successfully, Bayh sponsored amendments to eliminate the Electoral College (at the time a bipartisan measure favored by, among others, Senate Republican leader Everett Dirksen and President Richard Nixon; Southern Democrats killed it); to enshrine equal rights for women (the ERA); and to grant D.C. statehood.

One of Bayh’s last accomplishments before he left the Senate in 1981 (defeated by—ouch!—Dan Quayle) was a bill cosponsored with Bob Dole that granted industry greater access to government patents—but also empowered the feds to take those patents back if they were not being used in the public interest. President Joe Biden yesterday announced that he will use this law to penalize drug companies that gouge customers on prices. In the 43 years since the law was enacted in December 1980 no president has availed himself of its “march in” provision, and maybe Biden won’t either. But at the very least the threat may spook Big Pharma into moderating its pricing policies. This is the subject of my latest New Republic piece. You can read it here.