On the Brink of Success: The Six Amendments that Fell Short – The Future of the Constitution, Part III

There have been 33 amendments to the Constitution that were adopted by Congress – but only 27 were ratified. What happened to the other six?

Part III of “The Future of the Constitution” series.

In celebration of Constitution Day on September 17, 2014, we are dedicating the week to a new series, “The Future of the Constitution“. Designed to examine the Constitution and its Amendments, “The Future of the Constitution“ will examine the amendment process, analyze existing, failed, and prospective amendment, take a look at the constitutional quandary found in campaign finance reform in the post-Citizens United era, and end with a review of retired Supreme Court Justice John Paul Steven’s newest book, “Six Amendments: How and Why We Should Change the Constitution”.

In Part I of the series, we discussed how the Constitution can be amended and gave a brief overview of the Constitution’s history and contents.

In Part II, which is broken up into three sections, we outlined the Bill of Rights, the Eleventh through the Twentieth Amendments, and we will examine the 21st through the 27th Amendment shortly.

in Part III, we will see that not all amendments end their arduous journey successfully.

Once an amendment crosses the high Congressional threshold, they seem destined for ratification. Historical odds are on their side; 27 of the 33 Congressionally approved amendments were eventually ratified. Often, amendments are propelled by national movements, backlash from unpopular actions or Supreme Court cases, or some other impetus that becomes a cause célèbre in the public’s eye.

For six prospective amendments though, that final push towards ratification faltered. From the ignominious collapse of the Corwin Amendment to the damning, drawn-out defeat of the Equal Rights Amendment, these are the six amendments that could have changed the Constitution as we know it.

I. Congressional Appointment Amendment
Pending Since: September 25, 1789
Number of States Ratified: 11/38 (History: 10/11 in 1789, 11/12 in 1792)

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.

The only unratified amendment out of the original twelve sent by the First Congress to the states in 1789, the Congressional Appointment Amendment continues to linger on, with no Congressionally mandated final day for ratification (a practice that was phased out, and replaced with seven-year windows for ratification for the 18th, 20th, and all subsequent amendments). The other eleven original amendments became the Bill of Rights, and eventually the 27th Amendment. While the two-century long process of ratifying the 27th Amendment might give this early American straggler some hope of being ratified, the chances of it ever becoming part of the Constitution are slim to none.

The failure to be ratified is all the more painful because at the time where amendments three through twelve of the original set became the Bill of Rights, the Congressional Appointment Amendment fell only one state short of crossing the threshold. This failure at the finish line occurred twice – once with 10/11 ratifications, and then again with 11/12 once Kentucky joined the United States and ratified the complete set of amendments. Where eleven states would once have been close to the finish line, now the Congressional Appointment Amendment would need twenty-seven more states to ratify it.

If it had been ratified successfully, the Congressional Appointment Amendment would have set the size of the House of Representatives at a minimum of 100 Representatives, and then adjusted the size of the House and the number of people each Representative would represent on a sliding, mathematical scale. The current size of the House of Representatives is determined by statute, and is actually in accordance with the Congressional Appointment Amendment’s sizing formula. Therefore, even if the Congressional Appointment Amendment were to be suddenly ratified by twenty-seven more states, the current composition of the House would not be effected.

II. Title of Nobility Amendment
Pending Since: May 1, 1810
Number of States Ratified: 12/38 (History: 11/13 pre-Louisiana 1812, 12/14 post-Louisiana 1812)

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.

Much like the Congressional Appointment Amendment, the Title of Nobility Amendment almost made it through the ratification threshold, but fell two states shorts in 1812. Since then, no other state has ratified the prospective amendment, and its chances of being added to the Constitution have dimmed ever since with the addition of more states to the Union. That being said, Congress did not set a final ratification date for the Title of Nobility Amendment, so it could potentially follow the 27th Amendment’s path some time in the future.

The amendment itself is straightforward: if any American citizen accepts a title of nobility from any other country, then the would not be allowed to possess an official office of the United States. The amendment was designed to ensure loyalty to America and to prevent the federal government from titles of nobility or honor.

In an interesting bit of trivia, due to some misprints of the Constitution and lack of easily transmitted news in the early 19th Century, there is a longstanding misconception that the Title of Nobility Act was ratified, and became the Thirteenth Amendment. This has never been upheld in a court of law, and the official Thirteenth Amendment’s purpose is the abolishment of slavery.

III. Corwin Amendment
Pending Since: March 2, 1861
Number of States Ratified: 3 or 0/38 (History: 3/26 in 1862)

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.

Speaking of slavery, the Corwin Amendment’s entire purpose was to place slavery outside of the realm of possible amendment. This would have been a nearly unprecedented change in the Constitution, as almost everything in the document is technically amendable given enough popular support. Though Congress authorized some sections of the Constitution to be shielded from amending for a temporary time period – including slavery at one point – and there is a single aspect of the Constitution that is explicitly unable to be amended – the requirement for all states to have equal representation in the U.S. Senate – to place slavery outside of the amending process would be to make it effectively sacrosanct. That is, unless an anti-Corwin Amendment amendment was ratified, but by that point you are bogged down in semantics and historical fiction.

The unprecedented move is revealed in the number of states that ratified the Corwin Amendment. While Congress adopted it in a last-ditch effort to prevent the South from seceding, the states themselves found the amendment unpalatable. Ultimately, only Ohio, Maryland, and Illinois ratified the amendment, with Illinois’ ratification being questionable due to procedural mishaps. Ohio almost immediately rescinded its ratification, and Maryland took the interesting step to rescind its ratification of the Corwin Amendment in 2014. Depending on how you look at it, some range of three to no states at all have ratified the Corwin Amendment.

This is significant because the Corwin Amendment does not have a final ratification date. Therefore, given a major upheaval in popular support, the Corwin Amendment could technically be ratified and added to the Constitution. Though the Thirteenth Amendment has abolished slavery as an institution, the possibility of a ratified Corwin Amendment would be a terrible reminder of America’s worst chapter.

IV. Child Labor Amendment
Pending Since: June 2, 1924
Number of States Ratified: 28/38 (History: 28/36 in 1937)

The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age.

The final of the six amendments with no prescribed final ratification date, the Child Labor Amendment would have given Congress the power to control the labor of people under the age of eighteen. Inspired by a Supreme Court opposed to regulations on interstate commerce, the amendment would have circumvented rulings in Hammer v. Dagenhart (1918) and Bailey v. Drexel Furniture (1922), both of which limited regulations on labor of people under the age of eighteen. Once the ideology of the Supreme Court shifted to adopt an expansive view of the interstate commerce clause and subsequently upheld the Fair Labor Standards Act of 1938 – which created expansive child labor laws – interest in the Child Labor Amendment waned.

The odds of the Child Labor Amendment being ratified in 2014 and onward are not so different numerically than they were in 1937; the prospective amendment must obtain ten more state ratifications, compared to eight almost a century ago. That being said, the longstanding nature of laws such as the Fair Labor Standards Act makes interest in the amendment practically non-existent. With rumors of the Supreme Court once again turning away from its expansive interpretation of the interstate commerce clause though, nothing can be said for certain.

V. Equal Rights Amendment
Ratification Period: March 22, 1972 – March 22, 1979/June 30, 1982
Number of States Ratified: 30-35/38

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

By far the most famous – and the most infamous – of the six amendments that failed to reach the ratification threshold, the Equal Rights Amendment (ERA) was designed to be the vanguard of feminism. Its failure was a crushing blow to the feminist movement, and a testament to the power of grassroots campaign that took what many saw as an inevitable and uncontroversial amendment and transformed it into a hot button issue.

The Equal Rights Amendment was first presented at the 75th anniversary of the Seneca Falls Convention. Written by Alice Paul, a leader of the suffragette movement, the ERA slowly wove its way through the political realm. Picking up endorsements from members of Congress, state legislators, and even some Presidents, the ERA seemed destined for ratification. Riding second-wave feminism and women’s frustration about a lack of progress, the ERA was finally passed by the 92nd Congress in 1971. It picked up the endorsement of then President Richard Nixon and seemed bound for a quick ratification by the states.

The pace for ratification was rapid; by the end of 1973, thirty states had ratified the ERA. Then the rate started to slow, going from thirty states to three states in 1974, one in 1975, and one in 1977. As the deadline for ratification approached, the unthinkable happened: states began to rescind their ratifications. While the constitutionality of rescinding ratification has never been addressed, ERA proponents found themselves snatching defeat from the jaws of victory.

Even a constitutionally questionable expansion of the ratification deadline did not help the ERA. By the time June 30, 1982 came about, the ERA had received no more state ratifications. The tally was final; the Equal Rights Amendment would not be a part of the Constitution.

The history of the ERA is long and storied, and deserving of much more attention than we can provide now. From the intense political campaigning to the unprecedented presence of special interest forces, the fight for the ERA awoke the American consciousness. Its effects continue on to this day, for while the ratification period has ended, ERA proponents are still lobbying and devising strategies for how to add the ERA to the Constitution. Many states have adapted their own versions of the Equal Rights Amendment, and in 2013, the ERA was reintroduced by Senator Bob Menendez. The Equal Rights Amendment may be defeated for now, but it is not outside the realm of possibility for a reemergence to occur.

VI. District of Columbia Voting Rights Amendment
Ratification Period: August 22, 1978 – August 22, 1985
Number of States Ratified: 16/38

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 final amendment to be adopted by Congress but fail to cross the state ratification threshold is the District of Columbia Voting Rights Amendment. The District of Columbia has a long and complex relationship with the Constitution, from successful endeavors (gaining electors in the Electoral College in the 23rd Amendment) to frustrating failures (gaining full statehood by establishing a 51st state, New Columbia, distinct from the seat of power, which would be limited to important complexes such as the White House and Congress).

This amendment would have fallen between the two extremes by giving the District of Columbia all the political aspects of a state, without making it the 51st American state. If the amendment had been ratified, then the District of Columbia would have gained actual seats in the House of Representatives (as opposed to the non-voting delegate it has now), two seats in the Senate (as opposed to the ‘shadow Senator’ it currently possesses), the ability to ratify amendments to the Constitution or add its voice to call a constitutional convention, and full representation in the Electoral College. The amendment itself would also explicitly repeal the 23rd Amendment, making it the second amendment to repeal a previous one.

Advocates for increased power in the District of Columbia have mostly turned away from the District of Columbia Voting Rights Amendment, perceiving it to be inadequate. Instead, there has been a significant ideological shift back towards full statehood for the District, through the Congressional establishment of New Columbia. Congress does have the power to establish new states, and for the first time in a while, Congress held a hearing on D.C. statehood. While any attempt to establish New Columbia is unlikely to succeed, the movement for Congressional representation in the District is powerful and invokes passionate responses. Do not expect to see this campaign go away any time soon, though the District of Columbia Voting Rights Amendment is less likely to see a resurgence than the ERA might.

Next Time in “The Future of the Constitution“

Part IV will examine proposed amendments that did not leave Congress, but which evince significant trends in American thought, and have the potential to go further into the ratification process. Considering that it took almost 203 years for Amendment XXVII to go from proposal to ratification, nothing is off-limits for these potential amendments.

In Part V, we will examine the future of the Constitution, and what amendment might endure the long journey to become Amendment XXVIII.

In the newly planned Part VI of the series, we will outline that latest prospective amendment to capture the public’s eye, S.J. Res. 19, commonly called the Udall Amendment. Designed to constitutionally alter the realm of campaign finance reform, we will analyze the positives and negatives of the prospective amendment, why it failed in the 113th Congress, and what the future of campaign finance reform may look like in a post-Citizens United era.

Finally, in Part VII, we will review retired Supreme Court Justice John Paul Stevens’ latest book, “Six Amendments: How and Why We Should Change the Constitution”.

~ John Isidore