27th Amendment errata

Comments on Cecil's Columns/Staff Reports
#1

What’s up with the 27th Amendment to the U.S. Constitution?

Two corrections to the report (I’m still waiting for someone to take pity and change the report–I don’t have access):

Should be 1978–not 1877 as one reader has suggested. When I went back to verify the century-plus gap, I discovered that John Dean got it wrong by one year. Other sources say 1978. TubaDiva fixed this once, but somehow it got changed back.

I guess that qualifies me for this thread: SDStaff wrong?

Obviously this is a typographical error: It should say “March.”

That is all.

#2

G, it’s a great report. Not to worry about the minor hiccough, TubaDiva will fix 'em in a jiffy.

#3

Good report, but it raises another question:

"Ten of the [original twelve] proposed amendments were ratified by enough states to become part of the Constitution. The compensation amendment was not among them. "

What was the other proposed amendment that was never ratified? And is it still ‘in play,’ waiting to be ratified by a sufficient number of state legislatures?

#4

Still in play, but superfluous right now. http://clerk.house.gov/members/memFAQ.html#size

Of course, if Congress decided to repeal Public Law 62-5 . . .

#5

There are six proposed Consitutional amendments which have been approved by Congress but not approved by sufficient states for ratification:

No time limit (i.e. technically still pending state ratification):

  1. 1789 The remaining article of the original Bill of Rights, listed above by Gfactor

  2. 1810 An amendment stripping American citizenship from a citizen who accepts a foreign title of nobility. (This is the one occasionally trotted out by moonbats, who claim that it was in fact ratified and that a the style of “Esquire” commonly used by lawyers counts.)

  3. 1861 An amendment prohibiting “Congressional interference with State domestic institutions”, including a prohibition on future amendments to undo the prohibition.

  4. 1924 An amendment granting Congress the power to regulate child labor.

Time limit set in the proposed amendment, and expired:

  1. 1978 An amendment to grant the District of Columbia the same Congressional representation as a state.

Time limit set in the Congressional resolution, and thus theoretically extendable:

  1. 1972 The Equal Rights Amendment.
#6

Lynch, Michael, “The Other Amendments: Constitutional Amendments that Failed,” 93 Law Library Journal 303 (2001) (pdf) is a good summary of some of the amendments Steve MB describes and also an excellent discussion of sources of information about such matters.

#7

This raises an interesting issue. *Dillon * says that Congress can put a ratification deadline into a proposed amendment. Of course, Dillon involved a challenge to an amendment that had been ratified within the seven-year limit contained in the resolution. The challenge was to the validity of the Eighteenth Amendment simply because it contained a limitation on the time in which it could be ratified–it didn’t involve an attempt to enforce such a limitation. Coleman says that the validity of an amendment is a political question and therefore not justiciable. Could Congress revive a dead amendment by resolution? Could it ignore the time-limit entirely? Imagine the following:

Proposed amendment says it must be ratified within seven years. For twenty years, it is ignored by the states. Then a change in politics makes it a popular amendment. States begin ratifying it, and within a year, 49 states have ratified it. Many of the ratification statements say something like: "we don’t care about the ratification deadline. We request Congress to extend or ignore it. The National Archivist certifies the amendment and publishes it in Statutes at Large. Congress passes a resolution affirming the validity of the amendment. In the resolution, Congress expressly disavows the seven year limit in the original proposal. What result?

According to Justice Black’s concurring opinion (joined by Roberts, Frankfurter, and Douglas) inColeman:

Again, in Coleman, the Court faced an amendment that lacked a time limit for ratification. It did not hold that time limits in proposed amendments were enforceable or that challenges to them were justiciable. The Court held:

The opinion of the Court does not say whether a challenge based on ratification after the time-limit is justiciable or not. Neither of the cases discuss whether Congress may extend a time-limit set in a proposed amendment. And of course, it doesn’t help matters that *Coleman * is a plurality opinion.

See generally, Judicial Review Under Article V

#8

If Congress and the States were inclined to extend or ignore the time limit in an ammendment, couldn’t they achieve the same effect by just passing a new ammendment saying the same thing, but with a new time limit? It seems to me that that would work just as well, without running the risk of people getting really angry at them for power-grabbing shenanigans.

#9

Absolutely. This was merely a hypothetical. I’m not suggesting they should do it the way I described.

#10

The problem is that they’d have to start getting state ratifications all over again (or else try to convince Congress and/or the courts that ratifications of the earlier incarnation still count on the grounds that the new one is identical).

#11

In Canada, a similar issue about how long an amendment stays open came up with the Meech Lake Accord back in the late 80s.

The Accord was the result of an agreement hammered out by the First Ministers at the Prime Minister’s country estate, Meech Lake. The federal government then then introduced the Accord as a package of constitutional amendments in Parliament, which approved them. Various provincial legislatures then began passing the amendments as well, but opposition to the Accord began to mount and the number of provincial ratifications started to slow down.

Unlike the US system, the Constitution of Canada itself sets the time limit for ratification: the required number of ratifications has to come in within 3 years of the resolution being introduced (Constitution Act, 1982, s. 39). The federal Parliament passed the resolution in 1987; as the three year anniversary started to approach in 1990, it started to look as if the whole thing would fail.

But wait! said some pundits. Unlike the U.S. system*, the federal government doesn’t have a monopoly on introducing amendments. Any province can introduce an amendment by passing a resolution for a constitutional amendment. So doesn’t the three year clock start ticking each time a province passes the resolution? If correct, you could have a “rolling” ratification deadline, that gets extended each time another province introduces the resolution. Of course, that means that Parliament might have to re-pass the amendment resolution. But the argument goes that so long as all of the necessary provinces, plus Parliament, pass the resolution within a three year period, it doesn’t necessarily have to be within three years from the resolution first being introduced.

The issue remains academic, because Meech Lake failed to pass, but it’s an interesting thought-exercise.

  • yes, I know that Congress is required to call a constitutional convention on the application of two-thirds of the states, but in practical terms and historical precedent, Congress has control over the amending process.
#12

I don’t know squat about jusiticiability in Canada. Would this issue ever be decided by a court? Or is it a political question that could be resolved without any juridical explanation?

#13

Why wasn’t this question answered?

#14

Good question - the precedents from the Supreme Court are not clear.

The main precedent is the Patriation Reference: Reference re a Resolution to amend the Constitution, [1981] 1 S.C.R. 753. Three of the provinces (Newfoundland, Quebec and Manitoba) challenged Prime Minister Trudeau’s plan for unilateral federal patriation of the constitution from Britain, by referring the issue to their courts of appeal. Appeals then went from the three courts to the Supreme Court which held that the federal government had the legal power to ask Britain for unilateral amendments, but that such a course would be in breach of constitutional convention unless there was substantial provincial consent. That forced the federal government into further negotiations with the provinces, resulting in the final patriation package.

However, following patriation, the government of Quebec instituted a second reference, arguing that the patriation package was flawed because Quebec had not consented to the amendments. That decision doesn’t seem to be on-line, but my recollection is that the Court was reluctant to get into the issue, because by that time the Constitution Act 1982 had been proclaimed in force.

So you’ve got one reference that takes a pretty open view of justiciability, and another that seems to take a more narrow view. The difference might be because the first one was prospective - no constitutional amendments had actually been made. The second would have been retrospective, and perhaps the court was taking a more narrow view as a result.

There has been one such case in a provincial court of appeal since patriation: Hogan v. Newfoundland, 2000 NFCA 12. The Newfoundland Court of Appeal was quite willing to review the constitutionality of an amendment to the provincial constitution. Can’t tell from the report if the justiciability issue was raised or not.

#15

Because I thought I covered it well enough here:

A glance at the National Archives website shows that as early as the 16th Amendment (1909) (http://www.archives.gov/national-archives-experience/charters/slurp_file.php?fileref=14 (image file)), Amendments were printed or typed–not written.

I’m also pretty sure the folks at the National Archives would frown on stacking documents under the Constitution. For one thing, if you stacked them like that, you’d have to move the Constitution to see the Amendments.

Fascinating discussion. Thanks.

#16

But surely, the Equal Rights Amendment is the only amendment to which such a concept could apply. The other amendments either have no time limit, or a time limit built into the text of the amendment itself.

Certainly, states could have continued to ratify the Eighteenth Amendment after the seven-year deadline, but it’s hard to think of anything that would have accomplished less. The text of the amendment itself said that it was inoperative under those circumstances. The Supreme Court wouldn’t have to rule on whether the amendment was properly ratified; all it would have to do would be to accept it as ratified and honor the text which declared itself inoperative.

With the Equal Rights Amendment, the deadline was incorporated in the resolution proposing the amendment, and Congress did in fact revisit the deadline later and extend it. Since it failed of ratification anyway, no one ever had to rule on the validity of the extension. Theoretically, I suppose, three more states could ratify it today and Congress could accept the ratifications by majority vote, leading to the controversy you envision.

After the controversy over ERA extension, Congress reverted to the earlier “this amendment shall be inoperative” procedure for the DC amendment, and I would expect them to use that format for any future amendments.

#17

And a couple more controversies as well, since four states rescinded their ratification of the ERA, and a fifth put a 7-year time limit on its ratification. The Supreme Court has never ruled on whether a state could rescind, or put a time limit on, its ratification of a Constitutional amendment.

#18

It’s not clear whether the Court would even consider the matter. Congress refused to honor states’ attempts to rescind their ratifications of the 14th Amendment. http://en.wikipedia.org/wiki/Article_Five_of_the_United_States_Constitution#Rescinding_a_ratification And the Court in *Coleman * said:

Attempts to condition ratification also have been rejected by Congress, although in a similarly not-quite-on-point, non-binding context:

Jack Rakove, *Original Meanings * 126

Federalists blocked agreement to that formula, and (with the help of 12 Anti-Federalists) to a motion to modify the formula to a more ambiguous one which replaced, “the words upon condition nevertheles’ with ‘in full confidence nevertheless,’ in effect substituting a political expectation for a legal qualification.” Id. at 127. This motion rejected Lansing’s final effort to reserve a “right to withdraw.” Id.

#19

This was the plot of the series finale of the Geena Davis TV series Commander in Chief. On the show, the speaker of the Illinois House of Representatives - an implacable foe of the ERA - died, and the President began arm-twisting and cajoling state legislators to get the ball rolling again so that ERA could finally be ratified. Just three states still had to do so; no action by Congress was said to be necessary.

#20

The ratification process in Illinois provided grist for further constitutional challenges when ERA was active in the 1970’s. The Illinois state constitution requires a three-fifths supermajority within each house of the legislature to ratify an amendment. Both houses reflect this requirement in their rules of procedure. ERA supporters challenged the requirement in federal court.

A federal appeals court, in Dyer v. Blair, found that states could indeed impose a supermajority requirement, but only by legislative rule, not by state constitutional fiat. Since Illinois had both the rule and the fiat, its supermajority requirement stood.

So we are now in the situation where both houses require a 3/5 majority, even though the state constitutional underpinning for the requirement has been struck down. Presumably, either Illinois house could now change its rules by majority vote. (Although Dyer v. Blair never reached SCOTUS.) For the last 30 years neither house has done so, but constitutional amendments haven’t been much of an issue.