Not all amendments pass constitutional muster


“Why don’t they pass a constitutional amendment prohibiting anybody from learning anything? If it works as well as prohibition did, in five years Americans would be the smartest race of people on Earth.”

— Will Rogers

“I can only assume that your editorial writer tripped over the First Amendment and thought it was the office cat.”

— E.B. White

In more than two centuries, our federal Constitution has been amended only 27 times and only once in the last 40 years. All amendments must be accepted by three-fourths of the states to become effective. History dictates that we take an occasional look at those attempts to amend our federal Constitution that didn’t quite make the cut.

Along with the Bill of Rights, two other amendments were proposed in 1789. The first would have created a formula for setting the number of representatives in Congress. If that amendment had passed, there would now be close to 6,000 members of Congress. They would likely have to meet at Commanders Field. It was ratified by 11 states.

The second amendment proposed at that time and not ratified is now the 27th Amendment. It was ratified a full 203 years after it was proposed. It provides, simply, that Congress cannot give itself a mid-term pay raise. All raises in congressional pay go into effect for the following term. Maryland first approved the amendment in December 1789. New Jersey gave it the needed 75% on May 7, 1992. (Ohio approved it in 1873.) Most proposed amendments now come with a seven-year window, after which they would have to be proposed by Congress again.

The next failed amendment is one that many people think is actually the law in the United States. It was proposed in 1809 and would have stripped American citizenship from any person who accepted a title or nobility from a foreign nation. It was ratified by 12 states and remains available for ratification by more. Because it would have been the 13th Amendment had it passed when originally proposed, the people who believe it’s the law are derisively known as “Thirteeners.”

Congress passed a pro-slavery amendment in 1861 just before Abraham Lincoln took office. Known as the “Corwin Amendment” after Sen. Thomas Corwin of Ohio, it was passed by only two states (Ohio being one of them). It would have prevented the federal government from prohibiting slavery.

A child labor amendment was proposed in 1924 and remains pending. However, Congress has passed legislation regulating child labor and the amendment has never been deemed necessary. The Equal Rights Amendment, which would have guaranteed equal rights to men and women, was proposed in 1972. It was ratified by 35 states, three short of passage. The deadline for ratification has now expired – though that deadline has been the subject of lawsuits as recently as a year ago. The Equal Rights Amendment was ratified by Ohio in 1974.

The final failed amendment was proposed in 1978 and would have given representation in Congress to the District of Columbia. It was passed by only 16 states. The deadline for ratification has now expired.

Questions have now been raised about whether the representation amendment proposed in 1789 was actually adopted that same year by Connecticut. A lawyer in New Jersey claims to have found proof that the Connecticut Senate approved the measure but failed to report their approval to the U.S. Congress. Connecticut’s House of Representatives was already known to have adopted the measure. If Connecticut had given the amendment the thumbs up, it would actually have become effective at the same time as the Bill of Rights.

The attorney, Eugene LaVergne, brought a federal lawsuit over the issue of ratification, but both the trial court and the Third Circuit Court of Appeals ruled that the question of whether an amendment was adopted was one for Congress, not the court system, to resolve. Interestingly, LaVergne was actually disbarred in New Jersey following claims of malpractice.

Dozens of proposals are made every year in Congress for constitutional amendments. These six are the only ones that have made it through the congressional process and to the states but then failed to reach ratification. Our Constitution provides for this most extraordinary of actions and we have, throughout our history, reserved it for only the most extraordinary of situations.

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.

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