Now that we’ve finished the Amendment Countdown, it’s worth spending a few moments on the Amendments that didn’t make it all the way through the process. As discussed seemingly an eon ago with the post on the 27th Amendment, it is purposefully difficult to change our Constitution. So the fact that we have even 27 of these changes is an impressive display of adaptability. That there aren’t more is not due to a lack of trying. The process has been initiated in excess of ten thousand times. But the vast, and I do mean vast, majority of those never made it very far. Obviously only 27 made it all the way. And only six made it through Congress before failing to achieve ratification with three-quarters of the states.
The original Bill of Rights actually contained twelve Amendments, but two of them – the first two, in fact – didn’t get ratified right away. The second of these (Congressional pay changes) eventually was ratified as the 27th Amendment. The first one, the Congressional Apportionment Amendment remains unratified to this day:
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.
Now that is a run-on sentence. Technically, as was the case with the 27th Amendment, this one could still be ratified. But Congress is already well over twice as big as the limits therein, and the number of persons per representative is now closer to a million than to fifty thousand, so it wouldn’t achieve anything to pass the Amendment.
In 1810, echoing the paranoia that accompanied things like Alien and Sedition Acts a little over a decade earlier, the Titles of Nobility Amendment was passed by Congress:
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.
Eleven states initially ratified this Amendment, two short of the required total at the time. By the time a twelfth had ratified it, there were more states, and so it was still two short. To date, that is where it stands, now requiring 26 more states in order to be ratified. There is no time limit on it, but let’s just say the odds are long at this point. There is a faction out there that believes it actually was adopted into the Constitution, but that argument has been struck down by the Supreme Court. Interestingly, if it were to somehow become law, the titles of lawyers and judges everywhere would make them non-citizens, and we’d have something of a judicial crisis on our hands.
When Abraham Lincoln was elected President in 1860, a number of Southern states decided to secede from the Union, knowing that Lincoln wanted slavery to end. What Lincoln wanted even more urgently at the time was to keep the Union intact. So when his predecessor James Buchanan implored Congress to develop an Amendment that would protect slavery in states where it already existed, and when Ohio Congressman Thomas Corwin led the drafting of said Amendment, Lincoln did not object. Thus became the following:
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.
The seven states that had already seceded did not vote on the Corwin Amendment in Congress, but just barely enough “yes” votes were obtained to pass it. It did not achieve its goal, however, as only a few Northern states ratified it (Ohio, Illinois, and Rhode Island). The Civil War followed soon after. And, of course, not only did the Corwin Amendment hit the ground with a thud, it was pummeled by the next two Amendments to be ratified; the 13th Amendment abolished slavery, and the 14th Amendment brought Constitutional restrictions to the states as well as the Federal Government.
In 1924, Congress passed the Child Labor Amendment:
The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age
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.
This was in response to some related court decisions on the subject, and it did get ratified by 28 states, but that was short of the required 36 at the time. The Fair Labor Standards Act of 1938 effectively achieved the same purpose as the Child Labor Amendment, so there’s been no significant activity on ratification of the Amendment since that time.
People my age will remember some of the debate in the 1970’s about the Equal Rights Amendment, intended to declare against gender discrimination at the Federal level. It was passed in 1972, but the original proposal, written by Alice Paul and Crystal Eastman, was submitted to Congress in 1923. From there it languished until growing support emerged in the 1960’s, and after passage it was ratified by 35 of the required 38 states during the 1970’s. Then along came the depressingly effective fear tactics of Phyllis Schafly and others, and the momentum stalled. It had a deadline, which was extended, but no additional states ratified it during that time, and a few states even decided to rescind their previous ratifications, which by the way may or may not be allowed (the Court basically punted on the question once the deadline again passed on the Equal Rights Amendment).
In recent years, Nevada and Illinois both passed resolutions to ratify the Equal Rights Amendment, meaning it is one state shy of some serious Constitutional fireworks. What happens if a 38th state signs on? There’s a defensible sentiment that Congress would have the power to act in that case, because the Amendment itself doesn’t include its ratification deadline. Hopefully we will at least get a chance to see that play out. Beyond the immediate implications for women’s rights, it would have a significant effect on future Amendments as well. But for the moment, these words are not in our Constitution:
Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
This amendment shall take effect two years after the date of ratification.
The last of the Amendments to be passed but not ratified was the District of Columbia Voting Rights Amendment, passed by Congress in 1978:
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.
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.
The twenty-third article of amendment to the Constitution of the United States is hereby repealed.
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.
Back when we discussed the 23rd Amendment, we talked a little bit about the “special” treatment the District of Columbia receives: no real representation in Congress, and only minimal participation in the Electoral College. The District of Columbia Voting Rights Amendment would have given the District just about every important right that a state would have, without going all the way to making it a state. Despite passage in Congress, it only received ratification by 18 states, and it was written such that the ratification deadline could not be extended. There doesn’t appear to be any groundswell of support to revive the issue for now, nor should that be expected any time soon: getting 38 states to agree that they should effectively reduce their influence by giving more to the District is a tough sell.
Then again, as you can see, any Amendment is a tough sell. But as frustrating as that can be at times, it is also vital to the protection of our Constitution. I hope you’ve enjoyed this nearly year-long tour of the Amendments – I certainly have, and I’ve learned at least as much as you have along the way. Next post will take a look at the original Constitution itself, and then we can finally start talking about some other stuff. Unless I amend that plan.
