CHAPTER
18

The ERA and Other Failed Amendments

In This Chapter

• Proposed, yet still pending, amendments
• The Equal Rights Amendment
• The D.C. Representation Amendment
• Amendments that failed to pass Congress

We know the Constitution has been successfully amended 27 times since 1789, including 10 amendments—the Bill of Rights—that came out of the first Congress. Besides the 27 amendments that have become part of the Constitution, 6 other proposed amendments have gone before the states and not been ratified. Two of those are apparently dead beyond revival, but four others are still pending and, at least in theory, could be approved someday, although that seems impossible because they are outdated, irrelevant, and unnecessary today.

Let’s review, briefly, from Article V: two thirds of each chamber of Congress, the House and the Senate, must approve a proposed constitutional amendment for it to be presented to the states for ratification. Three quarters of the states must ratify the proposed amendment for it to become part of the Constitution. Since Alaska and Hawaii joined the Union, that means 38 states must ratify.

So it’s rare for the Constitution to be amended. The framers of the Constitution wanted it to be difficult back in 1789, and since then, Americans generally have been reluctant to tinker with the supreme law of the land.

But attempts to amend the Constitution are far from rare. Besides those 33 proposed amendments that have gone before the states, more than 10,000 other proposed constitutional amendments have been introduced in Congress over the years.

Early Amendments Still Pending

Twelve possible amendments came before the first Congress after the Constitution was approved in 1789. Amendments Three through Twelve were approved by two thirds of both the House and Senate and then ratified by three quarters of the states—10 of the 13 states at the time—and incorporated into the Constitution as the Bill of Rights.

What about those first two proposed amendments? The second one said that if senators and representatives vote themselves pay raises, they cannot start collecting them until the next session of Congress. That’s the proposed amendment that languished for more than 200 years before being revived and becoming the Twenty-Seventh Amendment in 1992.

The Congressional Representation Amendment

The initial proposed amendment to come before that first Congress—it would have become the First Amendment had it been approved, rather than the free speech/press/religion First Amendment so familiar to us today—is still languishing and is unlikely to ever be revived. No doubt that proposed amendment seemed really important at the time: it was designed to ensure that the House of Representatives reflected the one-man, one-vote principle. It specified that as the country grew, there eventually would never be fewer than 200 members of the House.

Here’s the text of that proposed amendment:

“After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.”

Of course, the House now has 435 members, so there would be little point in trying to revive the proposed amendment aimed at guaranteeing there would be at least 200 representatives. However, there was no time limit for ratification for those initial amendments—that’s why the Congressional pay raise amendment could be brought back and approved two centuries later—so in theory, the amendment requiring the House to have at least 200 representatives could be revived someday, too. But don’t hold your breath.

The Noble Title Amendment

Another amendment that is technically still before the states for ratification came out of Congress in 1810 and was aimed at keeping U.S. citizens from taking positions or titles in foreign governments and from taking gifts from foreign leaders. Under this proposed amendment, an American who accepted a British knighthood, for example, could be stripped of his U.S. citizenship:

“If any Citizen of the United States shall accept, claim, receive or retain any Title of Nobility or Honour, or shall, without the Consent of Congress, accept and retain any present, Pension, Office or Emolument of any kind whatever, from any Emperor, King, Prince or foreign Power, such Person shall cease to be a Citizen of the United States, and shall be incapable of holding any Office of Trust or Profit under them, or either of them.”

Twelve states had approved this amendment by 1812, not enough for ratification. At least in theory, however, the proposed amendment is still on the table and could be revived in much the same way that the Twenty-Seventh Amendment languished for a couple hundred years before being approved.

There’s an arcane, perhaps spurious—and some might say wacky—argument connected to that 1810 amendment. Some claim the amendment actually was ratified and has been in effect for all those years. Furthermore, the argument goes, since American lawyers sometimes use the Esquire honorific, as in “John Lawyer, Esq.,” that is a title that could be regarded as illegal under the amendment. Therefore, according to the theory, all lawyers should be stripped of their citizenship. And because so many lawyers served in Congress over the years—illegally, under this theory—all or most of the actions taken by Congress since 1812 have been illegal.

Don’t count on using this argument to say the income tax law is unconstitutional, though.

The Slavery Amendment

In 1861, as war clouds were gathering, Congress approved a joint resolution that would have allowed individual states to retain slavery and taken away the federal government’s power to outlaw it. The amendment is widely viewed as a last-ditch effort by the Union to keep the South from seceding. The thinking, even among those who hated slavery, was that it was better to keep the Union together and outlaw slavery later, when it was politically more expedient. Besides, it did not appear that the amendment would ever get the necessary approval of three quarters of the states. President Lincoln signed the resolution—it is the only proposed amendment to carry a presidential signature—in hopes that voting on the amendment would head off war.

The proposed Corwin amendment, named after the congressman who introduced it, read:

“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.”

Only two states approved the amendment before the Civil War broke out later in 1861. Eventually slavery was abolished by the Thirteenth Amendment, and the proposed Corwin amendment became a historical footnote.

The Child Labor Amendment

Besides the three proposed amendments from the nineteenth century that were never ratified—congressional representation, noble titles, and allowing slavery—there is one other proposed amendment, this one from the twentieth century, which is still on the table, at least in theory. In 1926, Congress sent the states a proposed amendment to pave the way for federal child labor laws and counter the exploitation of children in the workforce:

“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.”

So far, 28 states have ratified that proposed amendment, but none since 1937. Ten more states would have to ratify it to write the proposed child labor amendment into the Constitution, but that seems unlikely considering that a great many state and federal rules and regulations are in place, along with court decisions that seem to be adequately protecting child labor.

The first proposed amendment to carry a time limit for ratification was the Eighteenth, otherwise known as Prohibition. Congress said the states had 7 years to ratify it or else the proposed amendment would expire and the country would be able to drink to that. The amendment was ratified within the time limit, of course, and nobody drank to that—at least not legally. The 7-year time limit has become standard for ratification, but Congress could change that at any time—and did, for one recent proposed amendment.

The Equal Rights Amendment

Most people think the Equal Rights Amendment (ERA) was initiated by the feminist movement of the 1960s. In fact, a version of the ERA was first offered in Congress in 1923, when the American women’s movement was flush with its biggest victory: ratification of the Nineteenth Amendment, which gave women the vote in 1920.

That original ERA might have had a better chance of passage if it wasn’t opposed by so many of the same women who had worked so hard to get themselves the vote. The big fear among the women’s movement was that the proposed amendment’s “equality” provisions would overrule existing laws that provided extra protection—protection men didn’t get—for women working in factories and shops.

Five decades later, when the feminist movement captured the imagination and the commitment of so many women—especially baby boomers—Congress approved the ERA in this form:

“Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

“Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

“Section 3. This amendment shall take effect two years after the date of ratification.”

When the proposed ERA went to the states in 1972, it seemed inevitable to many observers that it would be ratified. To many, it seemed like the next logical step in the civil rights movement. Indeed, 22 of the required 38 states ratified the ERA in the first year.

But times were changing, and opposition to the ERA grew as the country became more conservative and an economic downturn led to more competition between men and women for jobs. The practical realities of feminism had many people thinking about the changing roles of men and women, and many people decided they didn’t like the changes. A Midwestern housewife and political activist named Phyllis Schlafly led a grassroots backlash. Only 13 more states, for a total of 35, had passed the ERA by 1977, and the 7-year time limit meant it would expire in 1979.

We the People

Phyllis Schlafly struck a chord with her newsletter, articles, speeches, and grassroots movement that appealed to many other women—and many men—who made it clear they did not want the ERA. “I like being a woman, and the protections the law now allows,” Schlafly said. She has continued to work for conservative causes, including a constitutional amendment banning same-sex marriage, into the twenty-first century.

In a controversial and much-debated move—was it constitutional?—Congress added 3 years to the 7-year deadline. But it didn’t do the ERA’s supporters any good. One of the battleground states was Utah, which had long been at the forefront among states in guaranteeing rights for women—the state had given women the right to vote in 1896. But Mormon church leaders declared that the ERA was a moral issue that would “strike at the family,” and many nonreligious leaders in Utah joined the opposition. Amid ardent campaigning by both sides—busloads of women pro and con flooded into the state—Utah considered the ERA twice and defeated it both times.

Schlafly’s home state, Illinois, had been considered sure to ratify but instead rejected it eight times. The Republican Party, which had been on record as favoring equal rights for women for decades, removed that plank from its national platform as Ronald Reagan, an outspoken ERA opponent, defeated incumbent Democratic President Jimmy Carter, whose wife, Rosalynn, was one of the leading campaigners for the amendment. A number of states that had ratified the ERA earlier tried to rescind ratification.

The ERA officially died on June 30, 1982, after its 10-year limit had expired. If it had somehow garnered 38 states, no doubt there would have been a huge legal battle over whether it was legal for Congress to extend the original deadline and whether states could rescind ratification.

It is doubtful that a new ERA will be presented, at least in the foreseeable political landscape, for a couple reasons: there’s no guarantee it would pass, and many of the feminists who would be the strongest supporters of another ERA now shrug and say it’s not needed. Court rulings under the Equal Protection Clause of the Fourteenth Amendment, along with the Civil Rights Act of 1964, have accomplished many of the goals of the ERA. Perhaps even more significantly, changes in society, including advances by women in so many aspects of the economic marketplace, have made a constitutional amendment for women seem less urgent.

The D.C. Representation Amendment

The most recent proposed amendment to the Constitution would have treated the District of Columbia as if it were a state in terms of representation in Congress: two senators and a proportionate number of representatives, depending on its population:

“Section 1. For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.

“Section 2. The exercise of the rights and powers conferred under this article shall be by the people of the District constituting the seat of government, and as shall be provided by the Congress.

“Section 3. The twenty-third article of amendment to the Constitution of the United States is hereby repealed.

“Section 4. 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.”

There was never a great deal of support for the proposed amendment anywhere except in Washington, D.C., and it died in 1985, when its 7-year time limit ran out.

Amendments That Never Got Out of Congress

It is unusual for Congress to send a proposed amendment to the states, and even more unusual for an amendment to be ratified. But it is not at all unusual for members of Congress to run their ideas for amendments up the flagpole and see if anyone salutes.

Several dozen amendments are proposed to Congress in a typical year—more than 800 in the 1990s alone, for example. Some are good old standbys that seem to pop up reliably every session of Congress. Others come and go, depending on the times. When Reagan was elected president in 1980 at age 69—he served until age 77, the oldest president ever—there was some talk about amending the Constitution to set a maximum age limit, but it never got very far.

Here are some proposed amendments that have failed to get out of Congress in the twenty-first century:

• Guaranteeing women the right to abortion
• Restricting abortion
• Allowing the president line-item veto power
• Allowing the president to serve more than two terms
• Restricting the president to one 6-year term
• Allowing foreign-born citizens (Arnold Schwarzenegger, for example) to become president
• Abolishing the Electoral College in favor of direct voting for president and vice president
• Permitting school prayer
• Restricting eminent domain
• Requiring a balanced budget

The Balanced Budget Amendment

One old reliable, to require the government to balance the federal budget, has had a checkered history and shows just how political the whole process of amending the Constitution can be.

For decades, the Democrats were viewed as the free-spending party, and whenever they were in control of Congress, the Republicans agitated for a balanced budget.

When the George W. Bush administration expanded the federal budget deficit, with the support of Republicans in Congress, some congressional Democrats began making noise about an amendment requiring a balanced budget. And when the budget deficit expanded further under President Barack Obama, some congressional Republicans began making noise about an amendment requiring a balanced budget. (More on this in Chapter 19.)

The Flag Desecration Amendment

Another suggested amendment that always seems to be around but has yet to get the necessary two-thirds approval of Congress is the so-called flag-burning amendment. In its latest incarnation, in 2006, the text was short and simple:

“The Congress shall have the power to prohibit the physical desecration of the flag of the United States.”

The House has approved a flag-burning amendment on a number of occasions, and in June 2006, it fell a mere 1 vote short in the Senate, getting 66 votes in favor and 34 against.

Supporters say the amendment is necessary in the face of Supreme Court decisions that in 1989 overturned a Texas flag-burning law and in 1990 overturned a federal law approved by Congress. In both instances, the high court said the laws violated the First Amendment’s guarantees of free speech.

The flag-burning issue is a classic illustration of the attitude many Americans have toward the Constitution. Polls show people are against desecration of the flag and are in favor of laws against it, but they’re not in favor of a constitutional amendment.

We the People

Hawaiian senator Daniel Inouye, who lost an arm in World War II, called desecrating the flag obscene. “But I believe Americans gave their lives in the many wars to make certain that all Americans have a right to express themselves—even those who harbor hateful thoughts,” he said in opposition to a flag-burning amendment.