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List of unsuccessful attempts to amend the U.S. Constitution

From Academic Kids

Each year, 100 to 200 proposals for amendments to the United States Constitution are introduced into Congress. However, over the history of the Constitution, only 33 have received the two-thirds vote in Congress necessary to propose them to the states, and of those 33, only 27 have been ratified by at least three-fourths of the states and consequently added to the Constitution. And of those 27, 10 of them were simultaneously incorporated into the nation's highest legal document.

Contents

Amendment process

The framers of the United States Constitution deliberately made it a difficult process, but not so difficult as to render it an inflexible instrument of government. They sought balance between stability and malleability.

Articles of Confederation

When Article V of the Constitution was drafted, it was done by the framers based on their past experience with the Articles of Confederation, which had been America's instrument of government since the revolution. To amend the Articles of Confederation, a unanimous vote of all 13 states was necessary - a consensus that proved impossible to obtain.

"The Ratification Two Step"

The Constitution has two different methods of being amended, each of which comprises two distinct steps.

The most commonly known method is state ratification. After an amendment is passed by a two-thirds majority in both congressional houses, it must, by Congress' choice, be either:

-- approved by the legislatures of three-fourths of the states (38 states since 1959), sometimes within a certain time (such as the Equal Rights Amendment, which required ratification within 7 years), or

-- ratified by conventions in three-fourths of the several states, a method used only in the case of the Twenty First Amendment.

The second, as yet unused, is the constitutional convention. Should the legislatures of two-thirds of the states (34 states since 1959) petition Congress to do so, a second constitutional convention would be held. Any amendments proposed by the convention would then be voted upon by the states, and either of the two methods of ratification could be used.

Some constitutional scholars believe the convention process is dangerous, arguing that such a convention would have no limits to the amendments it could propose, and could, conceivably, propose an entirely new constitution. Others disagree, claiming that a convention would be restricted to the subjects for which it were assembled, and that even if the convention could propose any amendment they wanted, those amendments would have to be ratified by three quarters of the states to become valid. Yet it is readily noted that the convention that produced the current United States Constitution was only intended to amend the Articles of Confederation.

Amendments approved by Congress but not ratified by the states

  • Article I of the twelve initially proposed amendments in 1789 (1st Congress), ten of which became the Bill of Rights in 1791, and one of which became Amendment XXVII more than 200 years later in 1992. The unratified Article I would have regulated the size of the United States House of Representatives and is still technically pending before, and subject to, ratification by the state legislatures.
  • Titles of Nobility amendment proposed in 1810 (the second session of the 11th Congress) and which came extremely close to being ratified by the legislatures of the requisite number of states. It would have provided that if an American citizen were to accept a title of nobility from a foreign nation, his or her American citizenship would have been revoked. It remains pending before, and subject to, ratification by the state legislatures.
  • An amendment proposed in 1861 (36th Congress), known as the Corwin amendment, to forbid future constitutional amendments that would permit Congressional interference with State domestic institutions. Specifically, it reads: "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." This amendment sought to protect slavery from federal intervention and was a last-ditch effort to avert the outbreak of the American Civil War. While it technically remains pending before, and subject to, ratification by the state legislatures, the subsequent passage of the Amendment XIII renders much of this proposal moot. If belatedly ratified, the Corwin Amendment might not be deemed to pertain to slavery at all.
  • A Child labor amendment proposed in 1924 (68th Congress) to grant Congress exclusive authority to legislate on the subject of child labor and to force state law to yield to federal law. It reads: "Section. 1. The Congress shall have power to limit, regulate, and prohibit the labor of persons under eighteen years of age. Section. 2. 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." It remains pending before, and subject to, ratification by the state legislatures.
  • The Equal Rights Amendment proposed in 1972 (92nd Congress). It read in pertinent part: "Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex." It expired unratified in either 1979 or in 1982 depending upon your point of view relative to the controversial extension of its initially agreed-upon deadline.
  • The District of Columbia Voting Rights Amendment proposed in 1978 (95th Congress), which—had it been ratified—would have granted to the people of Washington, D.C. the full voting rights in Congress of a U.S. state. It expired unratified in 1985, well short of the necessary approval by lawmakers in three-fourths of the states.

Given the fact that the first four of these unratified amendments are still pending, meaning that they could—however unlikely—still be ratified, Congress initiated the practice in 1917 of placing deadlines on the amendments that it sends to the states for consideration, typically seven years. The only two post-1917 exceptions to this were the Nineteenth Amendment offered in 1919 and ratified in 1920, and the still-pending, anti-child-labor amendment offered in 1924. Hence, the Equal Rights Amendment and the D.C. Voting Rights Amendment have both expired and cannot be resurrected without re-passage by Congress.

Amendments that were not approved by Congress

Since 1789, over 10,000 constitutional amendments have been proposed in Congress. Some are banal, with quiet introductions and equally quiet deaths in committee. Others are the result of intense debate following a controversial vote in Congress or a controversial decision by a court of law–often of the United States Supreme Court, or some other highly-publicized public event.

For example, following the decision of the Supreme Court in the Roe v. Wade case in 1973, several amendments were proposed in Congress. The intent of some was to overturn the decision, and the intent of others was to bolster it. In the 93rd Congress, several joint resolutions were introduced in the House of Representatives calling for an amendment to "prohibit abortion from the moment of fertilization" (H.J.RES. 1041) or some other similar language.

Most such joint resolutions fail because they do not garner the required minimum vote of two-thirds (of a quorum) from members in both houses of Congress. In fact, these joint resolutions rarely even make it out of congressional committees.

The list of amendments that were not approved by Congress, then, is quite a long one. Members of Congress are free to propose as many amendments as they wish and on any subjects they please, and often do so several times in the two-year existence of just one term of Congress, and several times during their congressional career. For some members of Congress, the continual reintroduction of amendments is a selling point during re-election campaigns. A listing of the amendments proposed over the course of several Congresses shows many duplicates. Without fail, for example, amendments to abolish the death penalty are introduced several times during each two-year term.

Recently failed amendments

The listing below, which is far from exhaustive, includes some of the hot-topic amendment proposals that have failed to result in an actual submission to the states.

See also: Proposed amendments to the United States constitution

See also

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