Eleanor Finch
Amending the US Constitution requires a high level of political consensus, which is often difficult to achieve. Since 1999, members of Congress have introduced 747 proposed amendments, with topics ranging from lengthening House terms to prohibiting any attempt to replace the US dollar with a global currency. However, none of these proposals have become part of the Constitution. The process of amending the Constitution is outlined in Article V, which states that amendments may be proposed by Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the state legislatures. For an amendment to become part of the Constitution, it must be ratified by three-fourths of the states (38 out of 50). In recent times, only three proposed amendments have failed to be ratified by the required number of states. These include the child-labor amendment, the equal rights amendment, and the amendment relating to representation in Congress for the District of Columbia.
| Characteristics | Values |
|---|---|
| Number of proposed amendments not ratified by the states | 6 |
| Number of proposed amendments not ratified by three-fourths of the States | 3 |
| First proposed amendment not ratified by three-fourths of the States | Child-labor amendment |
| Second proposed amendment not ratified by three-fourths of the States | Equal rights amendment |
| Third proposed amendment not ratified by three-fourths of the States | Representation in Congress for the District of Columbia |
| Number of amendments proposed by constitutional convention | 0 |
| Number of amendments ratified by three-fourths of the States | 27 |
| Number of amendments proposed by Congress | 33 |
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What You'll Learn
Child-labor amendment
The Child Labor Amendment (CLA) is a proposed and still-pending amendment to the United States Constitution that would specifically authorise Congress to regulate the "labour of persons under eighteen years of age". The amendment was proposed on June 2, 1924, following Supreme Court rulings in 1918 and 1922 that federal laws regulating and taxing goods produced by employees under the ages of 14 and 16 were unconstitutional.
The Keating-Owen Act of 1916, which attempted to regulate interstate commerce involving goods produced by underage employees, was deemed unconstitutional by the Supreme Court in Hammer v. Dagenhart (1918). Later that year, Congress attempted to levy a tax on businesses with employees under 14 or 16, which was struck down by the Supreme Court in Bailey v. Drexel Furniture (1922). These rulings highlighted the need for a constitutional amendment to address child labour legislation effectively.
During the Progressive Era, muckraking journalists and photographers, notably Lewis Hine, drew public attention to the exploitation of children in factories, fields, and mines. Hine's photographs documented the harsh working conditions, galvanising support for reform. By the mid-1930s, the majority of state legislatures had ratified the CLA. However, it has not been ratified by the requisite three-fourths of the states according to Article V of the Constitution, and interest in the amendment waned after the Fair Labor Standards Act of 1938, which implemented federal regulation of child labour with Supreme Court approval in 1941.
As of 1937, only 28 states had ratified the amendment, falling short of the required threshold. While some states, like Hawaii and Connecticut, have recently passed resolutions to ratify the CLA, it still requires ratification by 10 more states to become part of the Constitution. The Child Labor Amendment is a notable example of a proposed amendment that has not yet become part of the United States Constitution due to insufficient state ratification.
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Equal Rights Amendment
The Equal Rights Amendment (ERA) was first drafted in 1923 by two leaders of the women's suffrage movement, Alice Paul and Crystal Eastman. It was proposed as an amendment to the US Constitution to guarantee equal rights for women. The text of the amendment has changed over the years, but its core principle has remained the same.
The ERA was unsuccessfully introduced in every session of Congress from 1923 until 1972, when it finally passed both houses by a substantial majority. The amendment states:
> "Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.
> Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
> Section 3. This amendment shall take effect two years after the date of ratification."
Despite the ERA's advancement in Congress, it faced significant opposition from various groups. One notable opponent was Phyllis Schlafly, a conservative activist who argued that the ERA would harm women by reducing their rights and freedoms. Schlafly's organization, The Eagle Forum, claimed that the ERA conflicted with traditional family and gender roles, particularly those rooted in religious beliefs.
The ERA needed to be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution. However, the ratification process encountered obstacles, and the amendment ultimately failed to gain enough state approvals. In 1982, after a disputed congressional extension of the original seven-year ratification period, the ERA was considered defeated.
In recent years, there has been a resurgence of interest in the ERA, with Nevada, Illinois, and Virginia becoming the latest states to ratify it in 2017, 2018, and 2020, respectively. However, the ERA's path remains uncertain, as some states have rescinded their prior approvals, and legal battles continue over its validity.
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Representation in Congress for the District of Columbia
The District of Columbia (DC) is the capital district of the United States and has a larger population than some states. Despite this, DC is not one of the fifty states and thus has no senators, and its representative in the House of Representatives is a delegate with limited voting privileges. This delegate has a marginalised role in Congress, and their constituents are not represented in the same manner as most US citizens.
In 1970, there was bipartisan agreement that DC deserved at least some representation in the US Congress. President Richard Nixon expressed his support for full voting representation for the district. An initial proposal by Rep. Earle Cabell suggested creating two non-voting delegate positions for DC: one for the House and one for the Senate. However, concerns about potential Senate stalling led to a compromise bill introduced by Rep. Ancher Nelsen, which guaranteed non-voting representation only in the House.
In 1978, further efforts were made to grant DC full voting rights in Congress through a constitutional amendment. The District of Columbia Voting Rights Amendment passed both chambers of Congress but failed to receive the necessary number of state ratifications by its 1985 deadline. This amendment was one of three proposed amendments that did not receive ratification by three-fourths of the states (38 out of 50 states), as required for an amendment to become part of the Constitution.
Since 1993, when the House of Representatives has been under Democratic control, delegates, including DC's delegate, have been allowed to cast non-binding floor votes when the House operates as the Committee of the Whole. DC has been represented by Democrat Eleanor Holmes Norton since 1991.
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Titles of nobility from foreign governments
The Titles of Nobility Amendment is one of the unratified proposed amendments to the US Constitution. It was proposed during the lead-up to the War of 1812 to prevent those holding foreign titles, and thus the allegiance demanded by those titles, from being able to run for government office. The amendment sought to bar US citizens from accepting titles of nobility or honour from any emperor, king, prince, or foreign power. It also sought to prevent citizens from accepting any presents, pensions, offices, or emoluments without the consent of Congress.
The amendment was approved by the Senate and the House of Representatives in 1810 with a two-thirds majority, which is the threshold required for an amendment to pass Congress. It was then sent to the state legislatures for ratification but failed to reach the three-fourths threshold required for it to become part of the Constitution. This requirement of ratification by three-fourths of the states (38 out of 50) is outlined in Article V of the Constitution, which also grants Congress the authority to propose amendments.
Despite not being ratified, the amendment was mistakenly included as the "Thirteenth Amendment" in some early 19th-century printings of the Constitution. This error occurred when the Philadelphia printing house of Bioren and Duane published a five-volume set titled "Laws of the United States" under a government contract in 1815. The proposed amendment was printed as "Article 13" along with the authentic Eleventh and Twelfth Amendments. This mistake was then copied by compilers of other books, and the amendment was occasionally printed as if it had been adopted, even after the US House of Representatives became aware of the error in December 1817.
The inclusion of this amendment in some early printings of the Constitution has led to some interesting legal arguments in recent times. For example, some litigants have tried to assert that lawyers who use the title "Esquire" have lost their citizenship or are disqualified from public office. Additionally, in a 2001 case, a defendant tried to use the Titles of Nobility Amendment to deny the trial court's authority to put him on trial, arguing that licensing lawyers violated the original Thirteenth Amendment. However, the Wisconsin Court of Appeals rejected this argument, stating that the current Thirteenth Amendment does not resemble the one cited and that a lawyer's license to practice is not granted by a foreign power.
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Congress's power over state domestic institutions
The United States Constitution divides the government into three branches: legislative, executive, and judicial. Congress is the legislative branch and is responsible for creating laws. It consists of the Senate and the House of Representatives.
Congress has a wide range of powers, including the power to:
- Lay and collect taxes, duties, imposts, and excises
- Regulate commerce with foreign nations, among the states, and with Indian tribes
- Establish uniform rules of naturalization and uniform laws on bankruptcy
- Punish counterfeiting of securities and current coin
- Promote the progress of science and useful arts by securing exclusive rights to authors and inventors
- Define and punish piracies and felonies committed on the high seas and offences against the law of nations
- Declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water
- Organize, arm, and discipline the militia
- Exercise exclusive legislation over the district that is the seat of the government of the United States, and over places purchased for the erection of forts, magazines, arsenals, dockyards, and other needful buildings
- Make all laws necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the government of the United States or any department or officer thereof
- Dispose of and make rules and regulations respecting the territory or other property belonging to the United States
- Guarantee to every state in the Union a republican form of government and protect them against invasion and, upon application of the legislature or executive, against domestic violence
Congress also has the power to propose amendments to the Constitution, which become valid once ratified by three-fourths of the states (38 out of 50). In recent history, three proposed amendments have failed to be ratified by the required number of states: the child-labor amendment, the equal rights amendment, and the amendment relating to representation in Congress for the District of Columbia.
One proposed amendment specifically relates to Congress's power over state domestic institutions:
> "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 was not ratified by three-fourths of the states and therefore did not become part of the Constitution.
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Frequently asked questions
In recent times, only three proposed amendments have not been ratified by three-fourths of the States.
The first is the proposed child-labor amendment, which was submitted to the States during the 1st session of the 68th Congress in June 1924. The second proposed amendment to have failed ratification is the equal rights amendment, which formally died on June 30, 1982. The third proposed amendment relating to representation in Congress for the District of Columbia failed of ratification, with only 16 States having ratified it as of the 1985 expiration date.
The authority to amend the Constitution of the United States is derived from Article V of the Constitution. The Congress proposes an amendment in the form of a joint resolution. After Congress proposes an amendment, the Archivist of the United States is responsible for administering the ratification process. For an amendment to become part of the Constitution, it must be ratified by three-fourths of the States (38 out of 50 States).
