How Failed Attempts to Amend the Constitution Mobilize Political Change

Roger C. Hartley

Description

Since the Constitution's ratification, members of Congress, following Article V, have proposed approximately twelve thousand amendments, and states have filed several hundred petitions with Congress for the convening of a constitutional convention. Only twenty-seven amendments have been approved in 225 years. Why do members of Congress continue to introduce amendments at a pace of almost two hundred a year?

This book is a demonstration of how social reformers and politicians have used the amendment process to achieve favorable political results even as their proposed amendments have failed to be adopted. For example, the ERA "failed" in the sense that it was never ratified, but the mobilization to ratify the ERA helped build the feminist movement (and also sparked a countermobilization). Similarly, the Supreme Court's ban on compulsory school prayer led to a barrage of proposed amendments to reverse the Court. They failed to achieve the requisite two-thirds support from Congress, but nevertheless had an impact on the political landscape. The definition of the relationship between Congress and the President in the conduct of foreign policy can also be traced directly to failed efforts to amend the Constitution during the Cold War.

Roger Hartley examines familiar examples like the ERA, balanced budget amendment proposals, and pro-life attempts to overturn Roe v. Wade, but also takes the reader on a three-century tour of lesser-known amendments. He explains how often the mere threat of calling a constitutional convention (at which anything could happen) effected political change.

Sujets

• Droit public
• Law
• History
• Politics
• History of the United States
• Social movement
• Droit et juridique
• Constitutional

Informations

• Publié par: Vanderbilt University Press
• Date de parution: 01 août 2017
• Nombre de lectures: 0
• EAN13: 9780826521507
• Langue: English

Extrait

How Failed Attempts to Amend the Constitution Mobilize Political Change
How Failed Attempts to Amend the Constitution Mobilize Political Change
Roger C. Hartley
Vanderbilt University Press | Nashville
© 2017 by Vanderbilt University Press
Nashville, Tennessee 37235
All rights reserved
First printing 2017
This book is printed on acid-free paper.
Manufactured in the United States of America
Library of Congress Cataloging-in-Publication Data on file
LC control number: 2016042797
LC classification number: KF4555 .H39 2017
Dewey classification number: 342.7303/2—dc23
LC record available at lccn.loc.gov/2016042797
ISBN 978-0-8265-2148-4 (hardcover)
ISBN 978-0-8265-2149-1 (paperback)
ISBN 978-0-8265-2150-7 (ebook)
For Alice H. Cook and Herbert L. Sherman Jr .
Labor Educators
Contents
Acknowledgments
Introduction: The Problem
PART I. Lessons from the ERA
1. Amendment Efforts as a Movement-Building Resource
2. Amendment Efforts as a Resource for Expressing Dissent and Promoting Deliberation
PART II. Impact of Failed Amendment Efforts on Congressional Politics
3. Prodding Congress through Use of the Article V “Application Clause”
4. The Impact of Article V on Federal Legislation
PART III. Impact of Failed Amendment Efforts on Federal Executive Policy
5. Failed Amendment Efforts and the President’s War-Making and Foreign Relations Powers
Conclusion
Cases Cited
Notes
Bibliography
Index
Acknowledgments
I am indebted to many people who assisted in this book’s conception and completion. My late faculty colleague Professor Stephen Goldman deserves special thanks for his early encouragement to convert into a book preliminary ideas I initially thought were suited only for publication as a law journal article. Over countless afternoon discussions assisting me in refining my thesis, and by his reading and critiquing early draft chapters, Steve helped guide the structure and enhance the quality of the final version. In addition, I want to thank Steve Young, one of the extraordinarily talented reference librarians at Columbus School of Law of the Catholic University of America. Steve tracked down so many obscure references for me that I long ago lost count. For his talent and dogged persistence, I am both amazed and appreciative. I want to thank Deans Veryl Miles and Daniel Attridge and Associate Dean Marin Scordato who supported this effort by recommending and authorizing financial support from the Catholic University Faculty Research Fund. Countless friends and colleagues have encouraged me along the way. They include Bill Osborne (and the entire Osborne/McArdle family), Dos Hatfield, and Scott Shelley. I ask indulgence and understanding of any who have been supportive but whom I inadvertently have failed to list. Upon reading the initial manuscript, Michael Ames, the Director of the Vanderbilt University Press, appreciated immediately the political potency of failed constitutional amendment efforts and helped move this project expeditiously to completion. Michael’s insights and masterful editing skills have left their tracings throughout the book. It is a markedly better book because of his input. And finally, without the patience and encouragement of my wife Catherine Mack this book could not have been written.
Introduction
The Problem
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several States, shall call a Convention for proposing amendments, which in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as one or the other Mode of Ratification may be proposed by the Congress.
—The Constitution of the United States, Article V
The provisions in Article V of the US Constitution are widely understood to perform the single function of providing a means for adding new language to the Constitution through the process of constitutional amendment. The goal of this book is to change that perception. The chapters that follow invite the reader to begin viewing Article V also as a tool that political and social reformers use to achieve a variety of other objectives.
A one-dimensional understanding of Article V’s constitutional function is understandable. After all, Article V’s text is limited to specifying the procedures for adding amendments to the Constitution. Moreover, media coverage of Article V is confined to discussions of newly proposed constitutional amendments or congressional hearings on a proposed amendment. And Article V’s constitutional function in the public mind is defined by its most visible accomplishments—the twenty-seven constitutional amendments added over the past 225 years. These formal amendments have been transformative by defining goals and setting standards for America’s public life. 1 Consider, for example, that but for Article V we would not have a Bill of Rights written into the Constitution. Nor would we have the Four teenth Amendment’s guarantee of due process and equal protection of the law. With the aid of Article V, the nation’s political community has been expanded to include African Americans, women, those too poor to pay poll taxes, residents of the District of Columbia (at least in presidential elections), and citizens between the ages of eighteen and twenty-one. 2 But Article V’s towering achievements may have distracted us from recognizing Article V’s less obvious political functions.
Many outstanding books have analyzed either the amending process in general or the effects on our constitutional order of certain past successful amendment efforts. 3 By contrast, this volume primarily considers constitutional amendments that failed in the sense that they were proposed but never adopted. Fully alert to the reality that no constitutional amendment likely will result, individuals and groups nonetheless actively propose constitutional amendments in every session of Congress. Social activists support many of these proposed constitutional amendments as part of their reform-oriented strategy (or as part of a reform-impeding strategy). Sophisticated amendment supporters understand that proposing and championing adoption of a constitutional amendment can influence the political process by favorably altering institutional relations and practices. The amendment effort fails to add new constitutional text but introducing a proposed amendment gains ancillary advantages for the amendment proposers—creating the paradox of winning by losing.
Like baseball, the constitutional amendment process is a game of repeated failure punctuated by occasional success. During the approximately 225 years since the Constitution’s ratification, members of Congress have introduced roughly twelve thousand proposals to amend the Constitution. In addition, states have filed several hundred petitions with Congress requesting the convening of a constitutional convention. Proposed amendments to restructure the government comprise the largest category of these proposals. 4 The pace of proposing amendments remains brisk. Members of Congress introduce nearly two hundred constitutional amendment proposals annually. 5 In recent years the flood of amendment proposals has been so great that some scholars have argued that a “constitutional amendment fever” had struck the land. 6 In April 2014, retired Supreme Court Justice John Paul Stevens published a book proposing political mobilization to adopt six additional constitutional amendments. 7 In June 2014, the Senate Judiciary Committee held hearings on a constitutional amendment to permit the federal government and the states to enact legislation to limit campaign spending. 8 In September 2014, eminent constitutional scholar and law school dean Erwin Chemerinsky published a book calling for a constitutional amendment providing eighteen-year terms for Supreme Court justices. 9 As recently as the summer of 2015, United States senator and presidential aspirant Ted Cruz staked his political career on excoriating the Supreme Court for its same-sex marriage and Affordable Care Act decisions and buttressed that attack on the Court by calling for a constitutional amendment requiring the justices to undergo periodic judicial retention elections. 10 Advocates continue to urge the state legislatures to act in concert to petition Congress to convene a constitutional convention. 11
The contemporary amendment fever in Congress cannot be explained by any realistic likelihood that an amendment proposal introduced by a member of Congress will bear fruit in terms of being cleared in Congress, sent to the states for ratification consideration, and ultimately mature into a ratified constitutional amendment. Of the roughly twelve thousand amendment proposals that have been introduced, only seventeen have been adopted as constitutional amendments since ratification of the ten amendments comprising the Bill of Rights. Considering the Bill of Rights as a single “mega-amendment,” 12 that translates into a total of eighteen constitutional amendments adopted in about 225 years. In addition, Congress has proposed six additional amendments that failed to secure ratification by the requisite three-fourths of the states. For every amending proposal Congress has adopted by a two-thirds vote in each congressional chamber and forwarded to the states for ratification, hundreds have been introduced but were rejected. It has been estimated that the odds of an amendment proposal gaining congressional approval and being proposed to the states are roughly one