Sunday, November 19, 2006

Failed Amendments We Have Known & Loved

(Crossposted from the American Constitution Society :: Columbia Law School)

Barring an unexpected Lame Duck attempt to amend the U.S. Constitution, Democratic control of Congress will probably result in a temporary moratorium on proposed amendments to the Constitution that would ban gay marriage or ban burning Old Glory.

Of course, the G.O.P. does not have a monopoly on converting a Congressional majority into failed attempts to amend the Constitution. During the next 2 years of their pending majority, if the Democrats need to find examples of entertaining failed attempts to amend the U.S. Constitution, history provides some real doozies.

In this post, we'll explore three prominent categories of failed Constitution amendments.

Zombie Amendments:
Approved, Not Ratified, No Expiration Deadline

Starting in the early 20th century, Congress began placing deadlines on the amendments it sent to the states for ratification. Typically, the states were given seven years to ratify an amendment. After the passage of the deadline, the proposed amendment would expire and Congress would need to start the process all over again to raise the issue. (In the past 50 years, two amendments expired after Congressional approval: the 1972 Equal Rights Amendment & the 1978 D.C. Voting Rights Amendment)

However, absent explicit sunset provisions, approved yet unratified amendments do not expire.1 Instead, they linger eternally, pending ratification. As shown with the 27th Amendment, an amendment which floated around for 200 years before finally being ratified in the 1990's, each of these amendments has the potential of becoming law.

Congressional Apportionment Amendment: This proposed amendment was the first of the original twelve amendments proposed to Congress (The original 2nd Amendment eventually became the 27th Amendment mentioned above). If passed, the amendment would have restricted the original size of the House of Representatives to 100 representatives, with later enlargements to be determined by Congress. From 1789 to 1792, 11 states ratified this amendment, leaving it two states short of ratification.

Titles of Nobility Amendment: Proposed in 1810, this amendment would strip U.S. citizenship from any citizen accepting, claiming, retaining, or receiving a foreign title of nobility without the consent of Congress.

Believed by some [See here and here. For a rebuttal, see here. (Apply salt liberally to the arguments on these web pages.)] to have been ratified and then supressed by a conspiracy of lawyers (who – so the theory goes – would lose their citizenship via their esquire title), this amendment was approved by 12 states, just one shy of full ratification. Since, at the time, it came within one house of the South Carolina legislature of being ratified, some 19th century printings of the Constitution erroneously include it as the 13th Amendment.2

Pro-Slavery Amendment: A last-ditch effort to avoid a civil war, this amendment – approved by the House and Senate on Februrary 28 & March 2, 1861, respectively – stated simply:
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.
Apart from its subject matter, the language of this amendment raises an important issue in U.S. Constitutional theory: Can a Constitutional amendment prohibit a later amendment through an entrenched clause?

Although this amendment was ultimately ratified by Ohio and Maryland, neither legislature ratified it before the start of Civil War hostilities with the Battle of Fort Sumter on April 12, 1861.

Child Labor Amendment: Proposed in 1924 and ratified by 28 states, this still-pending amendment requires the approval of 10 more states in order to restrict to the federal government all power to regulate labor of persons under 18 years old.

This amendment is a direct reaction to the Child Labor Tax Case,3 which found Congress had overstepped the boundaries of the 10th Amendment with the scope of the taxes it placed on factories employing child labor.

Let's Remake America Amendments:
Ambitious Attempts to Change this Country

Had they been ratified, these proposed amendments would dramatically change the way our country works.No Way, José Amendments:
That's Just Crazy Talk

These proposed amendments were going exactly nowhere, but that's why we like 'em.

1 Coleman v. Miller, 307 U.S. 433, 454 (1939) (Finding that all amendments are considered pending before the states indefinitely unless Congress establishes a deadline within which the states must act.)

2 In Campion v. Towns, 2005 WL 2160115 at *1 (D. Ariz. 2005), a tax protester produced an 19th century archival copy of the Constitution incorrectly listing the Titles of Nobility Amendment as the 13th Amendment. Needless to say, the argument based on the existence of this document did not go very far with the Court.

3 Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922)

4 354 U.S. 1 (1957)


Anonymous said...

Where is your verbal "beat down" of Jesse Jackson Jr.?

Corey said...

lol, hilarious!