# The American Constitution **URL:** \ **Category:** Factual Questions\ **Created:** [August 23, 2003, 1:35pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142 "2003-08-23T13:35:15Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Susanann](https://avatars.discourse-cdn.com/v4/letter/s/7ab992/32.png) [@Susanann](https://boards.straightdope.com/u/Susanann)\ **Post date:** [August 25, 2003, 12:19pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/41 "2003-08-25T12:19:05Z")
> [@](#): > > \*Originally posted by Zoe \* > \*\ ***+MDI** , an example of an amendment that _hasn’t_ passed in the eighty-odd years since it was introduced is this: > > This amendment is introduced in every session of Congress and is held up in committee. (That is a good way to keep something from being voted on.) > > States continue to ratify it anyway. The last to sign on was Illinois in May of this year. > > \*\* 2 more states, and a quickee emergency session of congress to once again extend the time limit to 2010, and we have equal rights for women with the ERA finally being approved as a constitutional ammendment. The time limit can be extended again for another 30 years by congress and signed into law by the president in just ten minutes. Re-introducing the ammendment in Congress is the WRONG!!! way to go, and I am totally against it. Starting over is totally unnecessary and leads people to believe that the previous 36 ratifications are not valid for who knows what reason? We have seen(by teh 27th ammendment) that once a state ratifies an ammendment, even 200 years earlier, the ratification holds. If we get just 2 states from Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, Virginia then the ERA is part of the Constitution. The rapidly changing demographics of Nevada will result in Nevada approving the ERA soon, with the growth of Las Vegas non-mormons will soon control the state legislature. The strategy should be to get Florida to approve the ERA. ---
**Author:** ![barbitu8](https://avatars.discourse-cdn.com/v4/letter/b/839c29/32.png) [@barbitu8](https://boards.straightdope.com/u/barbitu8)\ **Post date:** [August 25, 2003, 12:52pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/42 "2003-08-25T12:52:47Z")
> [@](#): > > \*Originally posted by bnorton \* > \*\*That’s exactly the thought that struck me as I read the wording of the 9th amendment. I’m surprised I haven’t heard the 9th invoked more often in the “right to privacy” debates. Then again maybe when it has been invoked it didn’t quite register what they were talking about. \*\* Well, Scalia disagreed, but the majority of SCOTUS has used the 9th Amendment to incorporate the right of privacy as a Constitutional right. ---
**Author:** ![El\_Zagna](https://avatars.discourse-cdn.com/v4/letter/e/d2c977/32.png) [@El\_Zagna](https://boards.straightdope.com/u/El_Zagna)\ **Post date:** [August 25, 2003, 1:37pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/43 "2003-08-25T13:37:51Z")
> [@](#): > > \*Originally posted by Susanann \* > **If we get just 2 states from Alabama, Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, Virginia then the ERA is part of the Constitution.** Can a state “unratify” an amendment? ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [August 25, 2003, 1:54pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/44 "2003-08-25T13:54:02Z")
> [@](#): > > \*Originally posted by barbitu8 \* > \*\*… used the 9th Amendment to incorporate the right of privacy as a Constitutional right. \*\* The concept that the inclusion of a itemized list of rights means that the Constitution is the source of our civil rights is hard to shake, isn’t it? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2003, 2:33pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/45 "2003-08-25T14:33:59Z")
> [@](#): > > \*Originally posted by Susanann \* > Starting over is totally unnecessary and leads people to believe that the previous 36 ratifications are not valid for who knows what reason? We have seen(by teh 27th ammendment) that once a state ratifies an ammendment, even 200 years earlier, the ratification holds. That’s only true if the original proposed amendment does not carry a time limit with it. If Congress’ amendment includes an expiration date, as the ERA did, then the above statement is untrue - see Dillion v. Gloss from the Prohibition era. Admittedly, you also said: > [@](#): > > 2 more states, and **a quickee emergency session of congress to once again extend the time limit to 2010** , and we have equal rights for women with the ERA finally being approved as a constitutional ammendment. (emphasis mine) However, while Congress clearly has the authority to set a time limit, as I mentioned above, the question of whether Congress may, in “mid-stream,” so to speak, _extend_ that limit is far from settled. In fact, the only decision I can find that’s on-point relates to Congress’ resolution that originally extended the ERA’s life by three years. A federal court found that Congress did NOT have the power to do that – that the package, including the seven-year-limit, was what had gone to the states, and could not be changed without starting the process over. See Idaho v. Freeman, 529 F. Supp. 1107 (1981). However, before this case could make its way up the appeals path, it was mooted by the passage of the additional three-year extension. The kindest thing that can be said, however, is that the ability of Congress to unilaterally extend the time, as **Susanann** suggests, is unsettled, with the only federal court considering the issue ruling adversely to the concept. - Rick ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2003, 2:37pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/46 "2003-08-25T14:37:09Z")
Very unclear sentence of mine above. I should have said that Idaho v. Freeman was mooted by the _expiration_ of the additional three-year period without the ERA being ratified by the requisite number of states. In other words, Congress passed a resolution extended the time from seven years to ten; someone sued; the federal court agreed that Congress had exceeded its power; before the decision could be appealed, the ten years ran out; the issue was thus moot. Sorry for the confusion. (And why do I see these things AFTER I hit ‘Submit’?) - Rick ---
**Author:** ![Susanann](https://avatars.discourse-cdn.com/v4/letter/s/7ab992/32.png) [@Susanann](https://boards.straightdope.com/u/Susanann)\ **Post date:** [August 25, 2003, 2:46pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/47 "2003-08-25T14:46:03Z")
> [@](#): > > \*Originally posted by bnorton \* > \*\*Can a state “unratify” an amendment? \*\* Wouldnt matter. It becomes a part of the constitution when 3/4 of the states “ratify” it, that is the process. That is all there is to it. There are no footnotes in the Constitution about a states “taking back” its ratification. “Unratifying” is irrelevent, meaningless, and not even mentioned. There is no constitutional procedure for “unratifying”. What if 5(now liberal states) of the original 13 states “unratified” the Right to Bear Arms, or what if 5 southern states “unratified” the rights of blacks, or “unratified” the income tax, thus lowering its original acceptance below the required 3/4ths?? It wouldnt matter. Anyways, “unratifying” something only gives even more support to the fact that you “ratified” it in the first place, which is all that is required. Ratifying is what counts, not unratifying, and there is no time limit in the constitution. The people who first ratified the 27th ammendment were long dead and buried before the last state ratified it. The 6 states who ratified the 27th ammendment before 1800, were not “repolled” to find out if they still wanted it, nor could they change the fact that their state “ratirified” the ammendment 200 years ealier. What is done is done. Their original ratification from prior to 1800 was all that was needed. The repeal of Prohibition required 3/4ths of current states to end it with a new ammendment, and not in getting 5 of the states who previously ratified prohibition to “unratify” it. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [August 25, 2003, 2:46pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/48 "2003-08-25T14:46:59Z")
> [@](#): > > \*Originally posted by Exapno Mapcase \* > **Just a nitpick. It’s not exactly true that the wording of the basic Constitution - Articles I through VII - has remained the same. Various of the amendments have superseded clauses in the Articles and so caused them to be changed or obsoleted.** Not correct – while you’re right that amendments have superseded or overruled clauses in the original document (or even in earlier amendments), there are no edits. The Constitution itself (ignoring the amendments momentarily) reads exactly the same today as it did in 1789 – it is just that certain of the provisions therein do not have the force of law. For example, Article I, Sec. 3 of the Constitution still reads “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof…” despite the fact that the 17th Amendment changed the procedure for the appointment of Senators, who are now elected by the state populace, not chosen by the state legislature. The various clauses regarding slavery (such as the Importation Clause in Art. I, sec. 9, the Census Clause in Art. I, sec. 1, the Fugitive Slave Clause in Art. IV, sec. 2; there are probably others I’m forgetting) are all still there in the Constitution despite the fact that slavery has been prohibited by later amendments (particularly the 13th); the slavery provisions in these clauses no longer operate as law, but they’re still there. –Cliffy ---
**Author:** ![Susanann](https://avatars.discourse-cdn.com/v4/letter/s/7ab992/32.png) [@Susanann](https://boards.straightdope.com/u/Susanann)\ **Post date:** [August 25, 2003, 2:57pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/49 "2003-08-25T14:57:01Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\* That’s only true if the original proposed amendment does not carry a time limit with it. If Congress’ amendment includes an expiration date, as the ERA did, then the above statement is untrue - see Dillion v. Gloss from the Prohibition era. > > \*\* The ERA ammendment did not have a time limit. There is no wording at all in the ERA ammendment nor an expiration date. If “congress” places a time limit, then “congress” can change the time limit. It has no effect on the ammendment itself which does not include a time limit in its text, and what the states ratified ratified was a not an ammendment with a time limit. The time limit proposed by congress was extraneous to the ammendment itself, and has nothing to do with the content of the ammendment, expicitly or implicity. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [August 25, 2003, 2:57pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/50 "2003-08-25T14:57:42Z")
> [@](#): > > \*Originally posted by bnorton \* > \*\*Can a state “unratify” an amendment? \*\* **bnorton** , I read you to be asking whether a state which has already ratified a proposed amendment can remove its consent while the amendment is still pending, waiting for additional states to ratify. As to this question, nobody knows. Some have tried – at least one or two states wanted to decertify their ratifications of the ERA. Since ERA never passed the question as to whether those states’ ratifications counted is moot. Like most issues of constitutional import, this is one which can never be definitively resolved until it develops actual, practical effects. Therefore, it will not be addressed until an actual amendment is ratified by some number of states such that it would go through if all the ratifying states count but would be under the limit if the states which have since changed their minds were let out. Until that happens, this issue is one for debate but there is simply no concrete answer. –Cliffy ---
**Author:** ![El\_Zagna](https://avatars.discourse-cdn.com/v4/letter/e/d2c977/32.png) [@El\_Zagna](https://boards.straightdope.com/u/El_Zagna)\ **Post date:** [August 25, 2003, 2:59pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/51 "2003-08-25T14:59:57Z")
> [@](#): > > \*Originally posted by Susanann \* > \*\*It becomes a part of the constitution when 3/4 of the states “ratify” it, that is the process. That is all there is to it. > > There are no footnotes in the Constitution about a states “taking back” its ratification. \*\* I think my question was unclear. I certainly realize that once an amendment has gone through the whole ratification process and is added to the Constitution that one or two states can’t undo the whole thing by changing their minds. I was really asking if a state that at one time voted to ratify the ERA could revisit the issue _before the amendment became law_ and choose to repeal its earlier endorsement, i.e., unratify the ERA. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [August 25, 2003, 3:12pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/52 "2003-08-25T15:12:40Z")
> [@](#): > > \*Originally posted by David Simmons \* > **I think the idea behind our system is that the people, collectively, have all rights and all powers. Some of those powers, and only those, are specifically granted to a group of elected representatives who act in the name of all as "the government."** For myself I would agree, but this is a subject of debate – the Constitution establishes a national government, clearly, but the question is whether we the people established it or whether the states did. Remember that the states existed before the system outlined in the Constitution. The states existed as legal entities from July 4, 1776; at the time, at least some people considered each of the then-extant states as 13 separate nations. The history of our federal system shows constant tension between the two ways of seeing the founding. The 9th Amendment suggests one reading; the 10th and 11th suggest another. I’d say that the fact that states are not permitted to leave the Union pretty definitively favors the idividualist interpretation, but the fact that the questions was settled at the time through force of arms and not force of law somewhat weakens its persuasiveness as a reading of history. This issue will remain a source of tension in our federal system for as long as it exists. –Cliffy ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [August 25, 2003, 3:33pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/53 "2003-08-25T15:33:57Z")
> [@](#): > > \*Originally posted by bnorton \* > \*\*That’s exactly the thought that struck me as I read the wording of the 9th amendment. I’m surprised I haven’t heard the 9th invoked more often in the “right to privacy” debates. Then again maybe when it has been invoked it didn’t quite register what they were talking about. \*\* This is something of an historical accident. At least I think so. In an early privacy case (_Griswold v. Connecticut_, 381 U.S. 479 (1965), a case about the right to birth control) Justice Douglas outlined what is called the “penumbra” theory in which he ruled that, although there is no exclusive right to privacy in the Bill of Rights, the content of so many of the rights in the Bill are privacy oriented that the overlap amongst them (the penumbra or shadow) combined with the 9th Amendment, creates a “zone of privacy” not explicitly set out in the Bill but nonetheless protected by it. However, this was considered something of a radical view and when later privacy cases were issued (most notably _Roe v. Wade_) the right to privacy was considered to be a part of the 14th Amendment’s guarantee of due process and not an inexplicit right protected by the 9th Amendment and the penumbras of the 2d, 3d, 4th, 5th, and 8th. This was in part because Douglas himself was a politically weak justice; he was considered something of a radical, his own personal life was the subject of some scandal (not very good when sex and marriage are the issues), and his reputation was generally that he sometimes ignored thoughtful jurisprudence in order to delve into policymaking. That’s perhaps not ideal for a member of the Supreme Court which must create procedures for lower courts to follow as much (or even moreso) than doing justice in individual cases. While I myself think that Douglas’s penumbral theory makes a lot of sense and would be a stronger place to locate the right of privacy than substantive due process of the 14th A., it is at this point a discredited doctrine. –Cliffy ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2003, 3:35pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/54 "2003-08-25T15:35:26Z")
> [@](#): > > \*Originally posted by Susanann \* > \*\*The ERA ammendment did not have a time limit. There is no wording at all in the ERA ammendment nor an expiration date. > > If “congress” places a time limit, then “congress” can change the time limit. It has no effect on the ammendment itself which does not include a time limit in its text, and what the states ratified ratified was a not an ammendment with a time limit. > > The time limit proposed by congress was extraneous to the ammendment itself, and has nothing to do with the content of the ammendment, expicitly or implicity. \*\* That’s an interesting claim, **Susanann**. What it lacks, unfortunately for you, is _cites_. My claim, on the other hand, had a cite - the Idaho v. Freeman case, which was decided at the district court level adversely to your interpretation above. What authority do you have for your proposition? - Rick ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [August 25, 2003, 3:36pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/55 "2003-08-25T15:36:23Z")
**bnorton** , I addressed your question while you were posting your clarification. I mention it because it’s the last post on pg. 1 and you might miss it. –Cliffy ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [August 25, 2003, 3:46pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/56 "2003-08-25T15:46:01Z")
> [@](#): > > \*Originally posted by Cliffy \* > \*\*This is something of an historical accident. At least I think so. In an early privacy case (_Griswold v. Connecticut_, 381 U.S. 479 (1965), a case about the right to birth control) Justice Douglas outlined what is called the “penumbra” theory in which he ruled that, although there is no exclusive right to privacy in the Bill of Rights, the content of so many of the rights in the Bill are privacy oriented that the overlap amongst them (the penumbra or shadow) combined with the 9th Amendment, creates a “zone of privacy” not explicitly set out in the Bill but nonetheless protected by it. --Cliffy \*\* It seems to me that this whole line of argument assumes that our rights don’t exist unless they are “protected by the constitution.” I think this is wrong. This might be the way the law has developed but all that does is confirm James Wilson’s original fears about the effects of the inclusion of a list of particular rights. His point was that the people are sovereign and don’t need any government defining their rights for them. Wilson, by the way, was one of those few who signed both the Declaration of Independence and the Constitution. He was an important figure in the Constitutional Convention and should certainly have known at least as much about the original intent and consensus of the founders as does Mr. Justice Scalia. ---
**Author:** ![Dogface](https://avatars.discourse-cdn.com/v4/letter/d/9d8465/32.png) [@Dogface](https://boards.straightdope.com/u/Dogface)\ **Post date:** [August 25, 2003, 3:47pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/57 "2003-08-25T15:47:03Z")
> [@](#): > > \*Originally posted by Walloon \* > \*\*Is being drafted a “right”? \*\* However, the ERA could be interpreted to mean that automatic exemption from the draft on the basis of gender could be unconstitutional. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2003, 3:49pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/58 "2003-08-25T15:49:37Z")
By the way - this is **General Questions**. Here, posters are expected to provide factual answers to questions. My factual answer to the issue of the legality of Congressional extension of timelines for amendment ratification is that the law is unsettled, but the only decision actually reached in federal court suggests it’s not legal. Now, if **Susanann** goes on to show a case settling the issue, then, obviously, the factual answer I provided will have been wrong, i will eat much crow, and this forum will have served its purpose. But if **Susanann** merely wishes to debate the idea that a different interpretation SHOULD be made, or that current case law, thin and non-precedential as it may be, is wrong and should or would have been overturned, then **Susanann** is in the wrong place. (Hint: the word ‘debate’ above is a clue.) - Rick ---
**Author:** ![Kalimero](https://avatars.discourse-cdn.com/v4/letter/k/aca169/32.png) [@Kalimero](https://boards.straightdope.com/u/Kalimero)\ **Post date:** [August 25, 2003, 4:16pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/59 "2003-08-25T16:16:48Z")
> [@](#): > > \*Originally posted by barbitu8 \* > \*\*The 14th was enacted to extend some of those rights of the People vis a vis the State. The legislative history shows that it was debated whether all of the rights in the Bill of Rights should be included, but it was decided to word it generally as shown above, up to the semicolon. This section is called “substantive due process.” The idea is that any right in the Bill of Rights that is inherent to the individual should be included, and that SCOTUS will determine which of the Bill of Rights should also be a limitation upon the individual States. Most of them have been, but the second (which is of so much controversy lately) has not, and IMO it is not an inherent right in the People. Several others have not been incorporated into the 14th either. > > The latter portion of the 14th Amendment means that everyone must be treated equally, which was a factor in the Texas sodomy case, since that law applied to homosexuals only. But the decision appeared to be based upon an implied inherent right of a person to have sex in private with any consenting adult, which would be part of the former portion. I say “appeared” since the majority decision was really not specific, any a concurring opinion did not base it upon that reason, but upon equal protection. \*\* > [@](#): > > _Originally posted by slipster_ > **"Due process" is an important concept which is difficult to define in exact terms. In fact, lawyers argue about whether something does or not amount to due process every day. Roughly, it means that a person is entitled to a minimal degree of fairness in the way the government conducts itself with respect to you, particularly in a court of law.** Thanks for your answers! I see how the 14th influences the jurisdiction. Fair trial, and all. But it also seems to put some restrictions on the _legislature_ of the states if a law, though not violating any rights explictely granted by the constitution, lacks this aforementioned “minimal degree of fairness”. Is this roughly correct? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2003, 4:28pm UTC](https://boards.straightdope.com/t/the-american-constitution/197142/60 "2003-08-25T16:28:59Z")
> [@](#): > > \*Originally posted by Kalimero \* > Thanks for your answers! > I see how the 14th influences the jurisdiction. Fair trial, and all. But it also seems to put some restrictions on the _legislature_ of the states if a law, though not violating any rights explictely granted by the constitution, lacks this aforementioned “minimal degree of fairness”. > Is this roughly correct? Yes, indeed. At its heart, the Due Process Clause gaurantees that both state and federal laws exhibit a sense of basic fairness. - Rick [Previous page](https://boards.straightdope.com/t/the-american-constitution/197142.md?page=2) [Next page](https://boards.straightdope.com/t/the-american-constitution/197142.md?page=4)