Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The framers of the Constitution deliberately made the process of adding amendments quite difficult. As outlined in Article V, an amendment to the Constitution requires approval by two-thirds of both houses of Congress and three-fourths of the states. Despite the obstacles to passing amendments, over the course of more than 200 years twenty-seven amendments have been added to the Constitution. These twenty-seven amendments all resulted from a widely-shared belief that constitutional change was the best method available to address an issue or solve a problem that the original Constitution did not anticipate. No amendment has ever been passed that served the demands of a minority or even a small majority; in fact, every amendment enjoyed widespread public support at the time of its passage.
For every amendment that has passed and been made a part of the law of the land, there are nearly 500 that have been proposed to Congress. Over the course of American history, nearly 12,000 amendments have been introduced to Congress. Some have related to weighty matters, such as slavery, equal rights for women, and rights for children; others, such as an amendment calling for renaming the country the ““United States of the Earth,” have been rather silly. Of all these amendments, only thirty-three have passed Congress and been sent to the states for ratification. And of these, six have never been ratified by the states.
The amendments proposed to the states but not ratified and those that never passed Congress still have a great deal to teach us about the process of amending the Constitution. A number of strong proposals, such as those for a balanced budget amendment or an equal rights amendment, enjoyed substantial support from the public and its representatives and yet have not been ratified. Other proposed amendments have been championed by a minority of people seeking political gain. Whether proposed amendments are serious or silly, they represent an effort by some Americans to reshape the Constitution, the ruling document of the United States.
The Forgotten First Amendment
Americans are rightly proud of the Bill of Rights, the name given to the first ten amendments to the Constitution, which were ratified as a group on December 15, 1791. But few know that there were actually twelve potential amendments presented to Congress in 1789. The second of these, concerning congressional pay raises, was eventually ratified and in 1992 and became the Twenty-seventh Amendment. But the first, which concerned the size of Congress and the ratio between representatives and population, has never been ratified by the states.
Though ten of the twelve articles proposed to the states (and later ratified as the first ten amendments) pertained to individual rights, Article I spelled out the number of representatives that would represent the people in Congress. Article I stated:
After the first enumeration [count] required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
Under this proposal, the House of Representatives would have grown continually with the growth of the population. Ten states ratified this proposed amendment, one shy of the eleven needed for ratification. But if it had passed, by the late 1990s the House would have had 5,000 members! In fact, legislation passed in 1911 set the size of the House at 435 members, which means that each representative now represents over 500,000 citizens. Historians now view this proposed amendment as a reminder of how poorly early Americans anticipated the future growth of their country.
No Nobles in Government
Early Americans had long been suspicious of so-called ““titles of nobility,” a granting of special status given by a king or prince. Having left countries where people with such titles as Lord, Baron, or Count received special privileges and power, Americans wanted to make sure that power in the United States was granted only by the vote of the people. Article I, Section 9, Clause 8 of the Constitution already declared that: “No Title of Nobility shall be granted by the United States; And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The framers wanted to be sure that elected representatives could not be influenced by titles or special privileges offered by a foreign power. But there were some who felt that the restrictions on titles of nobility should be even stricter.
In January 1810 Senator Philip Reed of Maryland offered the following amendment to the Constitution:
If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent on Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them.
In plain language, any citizen who accepted any title of nobility would be stripped of his or her U.S. citizenship and forever forbidden from holding public office. The proposed amendment passed the House by a vote of eighty-seven to three and the Senate by a vote of nineteen to five. Though twelve states quickly ratified the amendment, no additional states ever voted for its ratification. (With no time limit on ratification, the amendment could potentially still be passed today.)
The motivations behind this proposed amendment remain shrouded in mystery. Historians are simply not sure why the proposal appeared at this time and was so quickly passed by Congress. Though there was no recorded debate when the proposal appeared before Congress, historians point to several factors they believe fueled interest in the idea of such an amendment. First, in the years leading up to the War of 1812 (between the United States and England), Americans became increasingly suspicious that both Britain and France were trying to influence American policy. One rumor held that French dictator Napoleon Bonaparte’s nephew, who was an American citizen, might try to establish an American monarchy; another rumor suggested that Federalist politicians sided with the British because they hoped to earn titles of nobility. Politicians from both parties were quick to vote for any measure that distanced them from such rumors.
This amendment proposal earned the nickname “the phantom amendment” when a printer’s error included the proposed amendment in an 1815 printing of the Constitution. Historians believe that the printer mistakenly believed that South Carolina had ratified the amendment and made it part of the Constitution. In 1874 Congress made most of the provisions of this proposed amendment into a law that applied to U.S. diplomats.
“The Session of Amendments”
By 1860 differences among slave-holding Southern states and free Northern states had reached a fever pitch, and the election of Republican Abraham Lincoln as president proved to many in the South that there was no longer any way to compromise with the North over the issue of slavery. The South wanted to keep slaves, and wanted slavery to be legal in new territories; the North wanted to stop the spread of slavery. When the Thirty-sixth Congress met for its second session shortly after the presidential election, its members felt that they had one last chance to save the Union. In a session that historian Herman V. Ames called “the session of amendments,” Congress heard over two hundred proposals for constitutional amendments designed to save the Union.
The road to disunion had been paved with over half a century of argument and several earlier attempts at constitutional amendments. In 1805 and 1806 several Northern states had called for amendments to stop the trade in slavery, but Congress made such an amendment unnecessary when it passed a law banning the importing of slaves. Though Congress entertained several amendments to ban slavery during the coming decades, the growing sectional conflict was generally handled by compromise legislation. The Missouri Compromise and the Compromise of 1850—both of which ensured that slave and free states were admitted to the Union in equal numbers—cooled but did not end sectional hatred.
Congress met in 1860 under the most difficult of circumstances: Southern states were threatening to secede, or leave, the Union, and though Northerners wanted to avoid civil war, they were only willing to go so far in seeking compromise solutions. In this tense atmosphere Congress considered hundreds of amendments, but opened debate on only a few. An amendment offered by John J. Crittenden of Kentucky would have allowed slavery south of the Missouri Compromise line and outlawed it north of the line, and would have counted a slave as three-fifths of a person when determining representation. This alone might have worked, but the Crittenden amendment also declared that these provisions were not amendable and that Congress could never alter the Constitution to abolish slavery. Like many others, this amendment failed. Early in 1861 a “Peace Conference” called by several states attempted to offer its own amendments, but these, too, were quickly discarded.
Finally, in February 1861, Thomas Corwin of Ohio offered an amendment proposal that satisfied Congress. The Corwin amendment proposal read:
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.
The amendment was approved in the House by a vote of 133 to 65, and in the Senate on March 3, 1861, by a vote of 24 to 12, but the fact that many Southern members of the Congress had returned to their states undermined the vote. The amendment had the support of President Lincoln, but only two states, Ohio and Maryland, ratified this proposed amendment.
In the end, constitutional amendment did not settle the slavery question—war did. Seven Southern states seceded from the Union by February 1, 1861, and on April 13 of that year Confederate troops began shelling the Union’s Fort Sumter in South Carolina. For four years Union and Confederate troops fought a bitter Civil War to decide the issues that Congress had tried unsuccessfully to resolve. Only when the South had been defeated militarily was the nation able to pass two amendments—the Fourteenth and the Fifteenth—that put an end to the institution of slavery and gave blacks the right to vote.
Throughout the early part of American history children as young as seven or eight regularly worked both in and outside the home to help support their families. Many boys left home to apprentice in a trade between the ages of ten and fourteen, and girls often performed household work. As large companies emerged in the nineteenth century, however, more and more children began to work in factories, textile mills, and mines. Many of these jobs exposed children to dangerous working conditions and long hours. By the late nineteenth century, reformers began to urge that children remain in school and that they be protected from working long hours in dangerous jobs. These reformers began a movement that culminated in the Child Labor Amendment of 1924.
The National Child Labor Committee (NCLC), formed in April 1904, became the leader in the campaign to reform working conditions for children. The NCLC was alarmed by the number of children who were engaged in work. By 1900 it was estimated that 1.75 million children under the age of fifteen held jobs. Twenty-five percent of the employees of Southern cotton mills were under fifteen, and half of these employees were younger than twelve. The NCLC publicized the problems of child labor and pushed for laws that would protect children. The first federal child labor law, the Keating-Owen Act, was passed in August 1916. It prohibited the interstate shipment of goods made by children under age fourteen and restricted the hours that could be worked by older children. But the Supreme Court ruled in Hammer v. Dagenhart (1918) that the law violated the Fifth and Fourteenth Amendments by interfering in interstate commerce and state regulation of manufacturing.
A Balanced Budget Amendment
Though politicians throughout American history have expressed concern with allowing the government to borrow money to finance its activities, it was not until the twentieth century that the question of a balanced federal budget became an important political issue. During the 1930s, federal spending on social programs grew dramatically. President Franklin Delano Roosevelt’s New Deal programs sought to ease the effects of the Great Depression by borrowing money to fund programs that provided work and assistance for many Americans. The federal government was spending more than it was raising in taxes and revenues, leading to a budget deficit (the difference between spending and revenues). Opponents of maintaining a federal budget deficit began to suggest that what was needed to curb government spending was an amendment calling for a balanced federal budget.
During the 1980s and 1990s the federal budget deficit grew dramatically, and so did interest in a balanced budget amendment. Beginning in 1981 a series of amendments began to be debated in Congress. Though these amendments varied in their details, most required that the president submit a balanced budget to Congress and stated that Congress could approve an unbalanced budget only with the approval of three-fifths of the Congress. Most amendments included provisions that allowed for unbalanced budgets in time of war. Such amendments came near passage in 1982 and again in 1994, when House Republicans promoted a set of proposals for government reform they called their “Contract with America.”
Many Americans supported the idea of a balanced budget amendment because it seemed like a good, common sense rule. Most households could not survive by spending more than they earned, so why should the federal government be allowed to? But constitutional scholars and economists voiced strong objections to such amendments. Economists objected that the amendment would not allow the president and Congress the flexibility they needed to react to economic change. Constitutional scholars worried that the amendment would bring the courts into the budget-making process in ways that would damage the functioning of government. With the amendment’s repeated failure in Congress and the substantial reduction of the federal debt in the late 1990s the balanced budget amendment disappeared from public debate.
Though some child labor reformers called for a constitutional amendment, the NCLC continued to push for legislation. In response to the Supreme Court’s Hammer v. Dagenhart ruling, Congress revised the Revenue Act of 1919 to impose a tax on any profits arising from child labor. The textile industry opposed the law and took their case to the Supreme Court. In Bailey v. Drexel Furniture Company, (1922) the Court again struck down a child labor law, this time ruling that the tax on child labor was actually a penalty and thus violated the Tenth Amendment.
With this second Supreme Court defeat the NCLC realized that a constitutional amendment was the best way to achieve its goals. But, according to some historians, the time for passing such an amendment had passed. Between 1913 and 1920 Americans had passed more amendments than in any comparable period since the passage of the Bill of Rights. Amendments were widely seen as effective instruments for achieving social change. But as the Eighteenth Amendment, which banned the sale, manufacture, and distribution of alcohol, came to be so widely disliked and disregarded in the 1920s, public opinion began to turn against using amendments to fix social problems.
The following Child Labor Amendment was presented to Congress in the spring of 1924:
Section 1. The Congress shall have the 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 the legislation enacted by the Congress.
The amendment passed in the House on April 26, 1924, by a vote of 297-69 and in the Senate on June 2, 1924, by a vote of 61-23, and was sent to the states for ratification following the Senate vote. Supporters expected speedy ratification, but soon found that the amendment faced serious opposition. Farmers feared that the amendment would keep children from working on family farms; newspapers feared that they would lose their delivery boys. The Roman Catholic Church called the amendment a Communist program. Many conservative groups labeled the amendment another attempt by the federal government to control people’s lives. In a reflection of the political climate, the first three states to vote on the amendment rejected it. By 1925 only three states had ratified the amendment, while thirteen states had rejected it. Ratification would be impossible unless one of the states changed its vote.
Efforts at securing ratification continued throughout the 1930s. Fourteen more states voted for ratification in 1933 alone, and by 1938 a total of twenty-eight states supported the amendment. But this was still not enough. In the meantime, the federal government became increasingly active in its regulation of child labor. The Fair Labor Standards Act of 1938 provided minimum working ages for many dangerous jobs, but allowed children under age sixteen to work in certain jobs such as in farming, as newsboys, and in industries not engaged in interstate commerce. This legislation pleased both sides, and the Supreme Court offered its stamp of approval with its ruling in U.S. v. Darby (1941). The Child Labor Amendment was dead, but its goal—protecting children—had largely been achieved.
More Rights for Women
The passage of the Nineteenth Amendment had granted women their long-sought right to vote, but advocates of women’s rights knew that it came nowhere near granting women full equality. What was needed, claimed Alice Paul, founder of the National Women’s Party, was an amendment that declared the legal equality of men and women. She proposed the following Equal Rights Amendment in 1923: “Men and women shall have equal rights throughout the United States and in every place subject to its jurisdiction. Congress shall have power to enforce this article by appropriate legislation.”” This amendment was regularly submitted to Congress for the next twenty years, but not until 1972 did Congress send an approved version of the Equal Rights Amendment (ERA) to the states.
The years leading up to Congressional approval of the ERA saw a pitched battle between those who wanted equality for women and those who believed women needed protection. The Supreme Court, in 1908, had ruled for protection in Muller v. Oregon, arguing that “the difference between the sexes … justif[ies] a different rule respecting a restriction of the hours of labor,” and approved of the idea that a woman’s “physical stature” should keep her from performing certain jobs. Proponents of protection argued that women needed to be protected from working long hours and dangerous jobs, and they worried that declaring women equal would mandate jobs such as women serving in the military. Proponents of equality, on the other hand, argued that a constitutional amendment was necessary to give women equal access to jobs and to ensure that women would not be passed over for promotions on the basis of their sex. Resistance to an ERA from powerful protectionists—including President John F. Kennedy and former first lady Eleanor Roosevelt—kept the amendment from gaining congressional approval through the 1960s.
Beginning in the 1960s, however, popular attitudes toward women began to change in ways that made it seem more likely that an ERA could succeed. The 1963 publication of Betty Friedan’s The Feminine Mystique, which revealed the deep dissatisfaction of American housewives, helped spark the modern feminist movement. With others, Friedan helped form the National Organization for Women (NOW). Adopting tactics like those used by civil rights groups that worked to ensure equal rights for African Americans, NOW campaigned for equal opportunities for women in education, employment, and politics. With resistance to the ERA finally disappearing, the House voted 354 to 23 for the amendment on October 12, 1971, and the Senate approved it 84 to 8 on March 22, 1972. On the latter date the Equal Rights Amendment was sent to the states for ratification, with the provision that it must be approved within seven years.
The ERA enjoyed a brief flush of success, as thirty states ratified the amendment within a year of its passage in Congress. But a backlash led by conservative groups meant that the ERA never received the remaining eight votes it needed for ratification. The Supreme Court’s 1973 Roe v. Wade ruling, which upheld a woman’s right to an abortion, alarmed those who feared that the expansion of women’s rights would endanger the family structure. Conservative leader Phyllis Schlafly of the National Committee to STOP ERA inflamed public opinion by suggesting that women would be abandoning their families to work long hours and serve in the military. Other ERA opponents scared people with images of same-sex bathrooms and homosexual marriage.
This organized resistance to the ERA, which caught supporters by surprise, led several states to rescind (withdraw) their ratification. As the seven-year deadline for ratification neared the amendment was still three states short of approval. After a difficult political battle ERA supporters convinced Congress to grant an extension of the ratification deadline. Yet even the extension did not help, and by June 30, 1982, the ERA remained three votes short of approval. Efforts to reintroduce the amendment in Congress since have all failed.
As with the Child Labor Amendment, however, the social and political changes that allowed Congressional passage of the ERA made actual ratification of the amendment seem unnecessary. By the 1970s, legislation and judicial decisions had granted women many of the rights that the amendment would have secured. Title VII of the Civil Rights Act of 1964 prohibited employment discrimination based upon sex, and Title IX of the Education Amendments of 1972 made federal financial assistance for educational institutions contingent upon their offering equal opportunities for women. The latter act is largely responsible for the creation and expansion of women’s athletics programs in colleges. Other acts banned significant forms of sex-based discrimination. And in a series of cases, the Supreme Court reversed its earlier stance concerning the “protection” of women. So, while the Equal Rights Amendment was not ratified, women have enjoyed most of the advantages that it would have bestowed.
The Last Unratified Amendment: District of Columbia Statehood
An amendment referred to the states for ratification in 1978 attempted to solve the nearly 200-year-old problem of whether residents of the District of Columbia should have representation in Congress. Article I, Section 8 of the Constitution, which granted Congress the power to create a district that would serve as the seat of the federal government, allowed for the creation of the District of Columbia on a large plot of land granted to the federal government by the states of Maryland and Virginia. The problem, however, was that the citizens of the district had no one in Congress to represent their viewpoint.
Over the years, Congress experimented with different ways of governing the district. Throughout the nineteenth and into the mid-twentieth century the district was subject to the whims of Congress for its governance. At times, the district’s citizens were authorized to elect a mayor, while at other times Congress appointed a mayor or a board of commissioners to run the district. In the 1960s, however, things began to change. The Twenty-third Amendment, passed in 1961, gave district residents the right to vote in presidential elections, and in 1970 Congress authorized the election of a non-voting delegate to the House of Representatives. But residents of the district insisted that these measures did not go far enough. The district had grown dramatically in size over the years, and had more than 750,000 residents in 1960. In the climate of growing concern for equal representation for all people that characterized the 1960s it seemed odd that so many Americans should lack representation simply because they lived in the nation’s capital. The problem was compounded by the fact that the district’s population was largely black, yet the district was ruled by conservative and even racist Southern senators who ignored the population’s needs.
After a significant period of debate, during which a variety of solutions to the problem were discussed (including giving the lands in the district back to Maryland and Virginia and allowing residents to vote as citizens of those states), Congress approved the following amendment by a vote of 289 to 127 in the House and 67 to 32 in the Senate:
Section 1. For purposes of representation in the Congress, election of the President and Vice President, and article V of this Constitution, the District constituting the seat of government of the United States shall be treated as though it were a State.
Section 2. The exercise of the rights and powers conferred under this article shall be done by the people of the District constituting the seat of government, and as shall be provided by the Congress.
Section 3. The twenty-third article of amendment to the Constitution of the United States is hereby repealed.
Section 4. This article shall be inoperative, unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.
Though residents of the district greeted the congressional approval of the amendment with enthusiasm, that enthusiasm was not widely shared by the states. Some amendment opponents said that ratification would have to be unanimous, for Article V of the Constitution held that “no state without its consent shall be deprived of its equal suffrage in the Senate.” (Voting for the amendment meant that each state’s share of power in the Senate would be reduced slightly.) Republican opponents predicted that the largely black population of the district would elect two Democratic senators and one Democratic representative. They resisted this challenge to the balance of power. By the end of the seven year ratification deadline in 1985 only sixteen states had ratified the amendment; the remainder of the states had either rejected it or simply ignored it. The citizens of the District of Columbia still remain without adequate representation at the federal level.
Solving Problems by Amendment: The Failures
Amendments to the Constitution offer Americans one of the most decisive ways of reshaping the direction of their government. Over the country’s first two hundred years, twenty-seven amendments have been added to the Constitution. Those amendments now help determine such things as the rights individuals retain, who can vote and how those votes translate to representation, and how our elected officials will succeed one another and be paid. Even the unratified amendments have exerted a real influence on the shape of civic life. The push for protecting children in the workplace led to laws offering protections, and the quest for the Equal Rights Amendment helped spark legislation that granted equal opportunities for women.
Congress has been offered nearly 12,000 amendments in the course of its history, yet only 33 have ever been approved by Congress and sent to the states. What has happened to the rest? Many are referred to congressional committees and are never heard from again; many others are quietly voted upon and rejected. But an important minority of potential and proposed amendments have appeared before Congress again and again, and have generated real public interest. Even though they have not been approved, proposed amendments on such topics as electoral college reform, a balanced federal budget, flag desecration, abortion, and congressional term limits continue to engage policy makers and politicians.
Electoral College reform.
Among the most frequently proposed amendments are those encouraging the reform of the electoral college, a complicated system used to elect the president and vice-president. Under the system, voters cast their votes for electors and not the candidates themselves. States are given a number of electors equal to their representation in Congress, and these electors meet to cast their votes for president and vice-president. The system has sometimes led to strange outcomes: in 1888, for example, Grover Cleveland received 100,000 more popular votes than Benjamin Harrison but Harrison was elected president by the electoral college. Similar problems marred the elections of 1824, 1876, 1960, and 2000.
Congress has received nearly 1,000 proposals for reform of the electoral college. Two such reforms have been adopted in the Twelfth and Twenty-third Amendments, but calls for more reform have occurred throughout U.S. history. The most popular of the proposed amendments calls for direct popular election of candidates. In the 110th Congress, Rep. Gene Green (D-Texas) introduced the Every Vote Counts Amendment on January 4, 2007. This measure would abolish the electoral college and provide for the direct popular election of the president and vice-president. This would be the most democratic method, ensuring that the will of the people would be most clearly heard. Other reforms call for appointing electors to individual districts within states, for dividing electors according to the popular vote within the states, or for giving all of a state’s votes to the candidate who won the popular vote within the state. The extraordinarily narrow margins by which presidential candidates won individual states in the 2000 election prompted renewed interest in reforming election procedures.
Legal protections for the American flag have long been popular with many patriotic Americans. At the turn of the twentieth century most states had laws that banned improper use of the flag (for advertising, for example) and flag desecration (which included both destroying and defaming the flag). For a time the Supreme Court backed such laws, finding it reasonable that states should wish to encourage patriotism. Though a 1943 ruling in the case of West Virginia Board of Education v. Barnette established that students could not be forced to salute the flag, actual flag desecration remained off limits until 1989. That year, in the Texas v. Johnson decision concerning a Texas man who had burned a flag in protest, the Court ruled 5-4 that “the government may not prohibit expression simply because it disagrees with its message.” This ruling, which declared that destroying the flag was an act of expression protected by the First Amendment, made flag desecration the hot political issue of the day and led to calls for the creation of an amendment offering protection for the flag.
A flag desecration amendment posed difficult problems for politicians. No one in public office could afford to come out in favor of flag burning, yet an amendment seemed too extreme a limit of people’s expression. When a proposed amendment that stated “The Congress and the States shall have power to prohibit the physical desecration of the flag of the United States” was voted down fifty-one to forty-eight in October 1989, lawmakers instead passed the Flag Protection Act. No sooner had the act been passed than protesters staged flag burnings to bring the law before the Supreme Court. In the case of United States v. Eichman (1990) the Court ruled 5-4 that the law was unconstitutional because it banned expression protected by the First Amendment. This ruling again inflamed public opinion, but renewed attempts to pass an amendment were narrowly defeated by Congress. Several times a flag protection amendment has passed the House but failed to obtain the necessary 67 votes in the Senate. For example, in 2006, the House passed the amendment 286-130. However, in June 2006, the amendment received 66 votes—one vote short necessary for passage. Historian Alan Brinkley wrote, however, that “Democracies secure in their identities and confident of their principles … do not usually feel the need to define patriotism by law. But given the conspicuous absence of either security or confidence in contemporary American culture, no one should assume that the flag issue has been put to rest for good.” In fact, after the narrow defeat of the amendment in the Senate in 2006, the Citizens Flag Alliance vowed to bring the issue back into Congress. Sure enough another constitutional amendment to prohibit the desecration of the American flag was introduced in January 2007.
The 1973 Roe v. Wade Supreme Court ruling protecting a woman’s right to an abortion encouraged a variety of efforts to overturn the ruling with a constitutional amendment. Generally supported by Republicans and religious conservatives, these amendment proposals sought to protect unborn babies in a variety of ways. Some proposals wanted to define a fetus (a developing human usually three months after conception to birth) as a person from the moment of conception and thus give the fetus all the legal protections guaranteed to any U.S. citizen, while others wanted to leave decisions about abortion up to individual states. Despite their support by Republican politicians no such amendment has ever come close to passage in Congress. Anti-abortion advocates have instead been forced to pursue their agenda through legislation and the hope that the Supreme Court will eventually overturn the Roe v. Wade decision.
Congressional term limits.
One of the hottest political issues of the 1990s was congressional term limits, which attempted to limit the number of years that an elected official could serve in office. Term limits were quite popular with Americans who came to believe that many legislators were more responsive to special interests (such as lobbying groups funded by corporations) than they were to voters’ needs. Term limits, said its backers, would remove career politicians and allow ordinary citizens to run for office. Opponents of term limits argued that many legislators became more effective as they served in office longer, and that voters already had the right to turn out of office anyone they disliked.
During the 1994 congressional elections, the Republican party supported a set of proposals for government reform, the “Contract with America,” that included a call for a constitutional amendment to limit the terms of members of Congress. After considerable debate the House soundly defeated such an amendment on March 29, 1995. Several states created their own term limit laws, but those that reached the Supreme Court were quickly overturned. In the end, a term limit amendment seemed an unnecessary adjustment to a system that worked fairly well.
One of the most divisive contemporary issues in American society concerns the issue of same-sex marriage. Many believe that marriage should be limited to one man and one woman in accordance with history and tradition. Others believe that gay citizens (both male and female) should have the right to marry and that such denial violates equal protection. In several sessions of Congress, amendments have been introduced to limit marriage to a union between one man and one woman. In 2004 and 2006, a federal marriage amendment failed to receive the necessary votes. In 2004 and 2006, the proposed amendment received 227 and 236 votes respectively in the House, well short of the necessary 290 votes.
Will the Constitution be amended again? History assures us that it most certainly will—whenever a majority of Americans and their representatives feel that their needs can only be addressed by a constitutional amendment. Constitutional scholar Richard B. Bernstein argues that the history of those amendments that have been proposed but not ratified points to “an important principle at the heart of the amending process: a successful amendment campaign requires a sustained consensus that a problem exists which is not readily fixed by anything short of an amendment.” Amendments are decisive and powerful; they indicate that a policy is so central to our conception of government that we are willing to enshrine it in our most sacred civic document. That the United States Constitution is flexible enough to permit such adjustment offers unique proof of its success.
FOR MORE INFORMATION
Bernstein, Richard B., with Jerome Agel. Amending America: If We Love the Constitution So Much, Why Do We Keep Trying to Change It? New York: Times Books, 1993.
Curtis, Michael Kent, editor. The Constitution and the Flag: The Flag Burning Cases. 2 Vols. New York and London: Garland Publishing, 1993.
Goldstein, Robert Justin. Saving “Old Glory”: The History of the American Flag Desecration Controversy. Boulder, Colorado, San Francisco, and Oxford: Westview Press, 1995.
Goldstein, Robert Justin, ed. Desecrating the American Flag. Syracuse, NY: Syracuse University Press, 1996.
Kyvig, David E. Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995. Lawrence, KS: University of Press of Kansas, 1996.
Palmer, Kris E., editor. Constitutional Amendments, 1789 to the Present. Detroit: Gale Group, 2000.
Amar, Vikram and Alan Bronstein. “President Bush’s Proposed Same-Sex Marriage Amendment: Part One in a Series on Wise and Unwise Constitutional Amendments,” Findlaw Writ, 2/04/2005, at
Barr, Bob. “The Federal Marriage Amendment: Why Conservatives and Liberals Alike Should Be Very Glad It Failed,” Findlaw Writ, 7/16/2004, at
Corn-Revere, Robert. Implementing a Flag-Desecration Amendment to the U.S. Constitution. Nashville, Tenn: First Amendment Center, 2005. Accessible online at
“Amendments Never Ratified for the U.S. Constitution.” Online at (accessed September 12, 2007).
“Chronology of the Equal Rights Amendment 1923–1996.” Online at (accessed September 12, 2007).