Unsuccessful attempts to amend the U.S. Constitution: Wikis

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The United States Constitution has been amended 27 times since the Constitution was ratified in 1788. Far more proposals to amend the country's supreme law are unsuccessful.

Up to 200 amendments are typically proposed in Congress each term.[1 ] But only 33 such proposals in U.S. history (including the 27 that were ratified) have received the two-thirds vote in Congress necessary to present them to the states. The framers intended that it be difficult to change the Constitution, but not so difficult as to render it an inflexible instrument of government. Their prescription drew upon their experience with the Articles of Confederation, which had been the United States' previous supreme law since 1781, and which required a unanimous vote of 13 states to amend. This unanimity proved impossible to obtain, and the framers therefore laid out a less stringent process for amending the Constitution in Article V.

Contents

Amending process

Amending the Constitution is a two-step process: Proposition and Ratification.

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Step One: Proposing an amendment

Article V allows for two methods of proposing an amendment: By Congress or by a national convention.

Congressional proposition

A two-thirds vote in both houses of Congress —assuming the presence of a quorum — may approve/propose an amendment. All of the ratified and unratified amendments have been proposed by this method.

National convention

An amendment may also be proposed by a national convention requested (or "applied" for) by legislatures of at least two-thirds of the states (currently 34).

Some constitutional scholars believe the convention-proposing alternative is highly unpredictable; they maintain that it would have no limits on what could be proposed, and could conceivably offer up an entirely new constitution. They note that the convention which produced the present Constitution was assembled only to amend the Articles of Confederation. Others disagree, saying that a convention would be restricted to the subject for which it was assembled, and that even if the convention could propose any amendment that it wanted, such an amendment would still have to be ratified by three-quarters of the states in order to become valid.

In 2007, politics Professor Larry J. Sabato proposed in his book A More Perfect Constitution that the states call a national constitutional convention but acknowledged that political elites would be hesitant to endorse the idea.

Step Two: Ratification

A proposed amendment must then be ratified. There are two possible methods of ratification, and only Congress may choose which method to use.

  1. Ratification by the legislatures of three-fourths of the states (38 states with 50 states currently in the Union). Such proposals sometimes have a ratification deadline.
  2. Ratification by state conventions of three-fourths of the states.

The amendment must not deprive a state of equal representation in the Senate without that state's consent.

Amendments approved by Congress but not ratified by the states

  • Article I of the twelve initially proposed amendments in 1789 (1st Congress), ten of which became the Bill of Rights in 1791, and one of which became Amendment XXVII more than 200 years later in 1992. The unratified Article I would have regulated the size of the United States House of Representatives and is still technically pending before, and subject to, ratification by the state legislatures.
  • Titles of Nobility amendment proposed in 1810 (the second session of the 11th Congress) and which came close to being ratified by the legislatures of the requisite number of states. It would have provided that if an American citizen were to accept a title of nobility from a foreign nation, his or her American citizenship would have been revoked. The proposed amendment remains pending before, and subject to, ratification by the state legislatures. Although it came close in the 1810s, subsequent admissions of states would require a considerable number of state approvals.[2]
  • An amendment proposed in 1861 (36th Congress), known as the Corwin amendment, to forbid future constitutional amendments that would permit Congressional interference with State domestic institutions. Specifically, it reads: "No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State." This amendment sought to protect slavery from federal intervention and was a last-ditch effort to avert the outbreak of the American Civil War. While it technically remains pending before, and subject to, ratification by the state legislatures, the subsequent passage of the Thirteenth Amendment renders much of this proposal moot.
  • A Child labor amendment proposed in 1924 (68th Congress) to grant Congress exclusive authority to legislate on the subject of child labor and to force state law to yield to federal law. It reads: "Section. 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age. Section. 2. The power of the several States is unimpaired by this article except that the operation of State laws shall be suspended to the extent necessary to give effect to legislation enacted by the Congress." It remains pending before, and subject to, ratification by the state legislatures. With the Supreme Court later upholding child labor laws, this proposed amendment became moot and it is unlikely that it would be necessary for this proposal to be ratified.
  • The Equal Rights Amendment proposed in 1972 (92nd Congress). It read in pertinent part: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." It expired unratified in either 1979 or in 1982 depending upon the legality of the (controversial) extension of its initial 7 year deadline. On December 23, 1981, a United States District Court ruled, in the case of State of Idaho, et al. v. Freeman, et al. (529 F. Supp. 1107; judgment stayed January 25, 1982), that the ERA's deadline extension was unconstitutional, however the Supreme Court later ruled the case moot, leaving the issue of the constitutionality of the extension open. Some legal experts claim that the 1972 ERA can still be ratified if three more states approve it.
  • The District of Columbia Voting Rights Amendment proposed in 1978 (96th Congress), which—had it been ratified—would have repealed Amendment XXIII and granted to the people of Washington, D.C. the full voting rights in Congress of a U.S. state. It expired unratified in 1985, well short of the necessary approval by legislatures of three-fourths of the states.

Given that the first four of these unratified amendments are still pending, meaning that they could — however unlikely — still be ratified, Congress initiated the practice in 1917 of placing deadlines on the amendments that it sends to the states for consideration, typically seven years. The only two post-1917 exceptions to this were Amendment XIX (offered in 1919 and ratified in 1920), and the still-pending, anti-child-labor amendment (offered in 1924). Hence, the ERA and the D.C. Voting Rights Amendment apparently have expired and cannot be resurrected without either re-passage by Congress, or re-initiation through application by two-thirds of the state legislatures for a convention for the consideration of the amendments, in either case in accordance with Article V. However, the seven-year limit is contained in the resolving clause, not in the body of the proposed amendments. Some proponents of the ERA disagree that the clause is actually effective and favor a "three state strategy" for passage based on the precedent of Amendment XXVII.

In 1992, in conjunction with congressional resolutions approving of the ratification of the 27th amendment, Senator Robert Byrd (D-WV) introduced a resolution (S. Con. Res. 127) that would declare the other four still pending amendments dead and unable to be ratified, due to the time which had lapsed since each proposal's most recent ratification. The proposal never got past the Judicial Committee, but it suggests that if any of the four pending amendments are ratified in the future, it may face a congressional challenge.

References

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