Constitutional Amendments that Failed in Congress
posted by Gerard Magliocca
As part of my research on the Child Labor Amendment, I’ve come across an interesting issue. There is a strong assumption that constitutional amendments are hard to enact, in part, because you need a two-thirds vote in each House of Congress. It turns out, though, that there are very few amendment proposals that have received a majority in each House but not two-thirds. In other words, in practice, the rules that govern statutory enactments (including the filibuster) weed out almost all amendment proposals.
Think about it — in the last twenty-five years the only two contrary examples are the Balanced Budget Amendment and the Flag Burning Amendment. Reaching back further, I don’t think there are many others (though I’d be interested if people know of some). One wonders, then, why there is a belief that the two-thirds rule is the reason for the lack of amendments rather than robust political support (or norms) in favor of the text as is.
October 14, 2009 at 4:02 pm
Posted in: Constitutional Law
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Responses (5)
Howard Wasserman - October 14, 2009 at 5:01 pm
We might draw a different inference from this point: Because everyone knows the hurdle for an amendment is so high, serious amendment ideas never are proposed or move forward. The only ones that get proposed are politically charged ones with a loud-and-loyal constituency, but that are not going to be particularly popular (e.g., right-to-life amendment).
Gerard Magliocca - October 14, 2009 at 6:15 pm
Howard,
Yes, I think that’s a plausible alternative, though one would have to look at whatever the data is to assess that hypothesis (or mine).
dave hoffman - October 14, 2009 at 6:21 pm
But Gerald, you can’t really look at the data to assess selection.
Gerard Magliocca - October 14, 2009 at 7:11 pm
Well, perhaps the sample is too small, but I don’t know that assessing selection is impossible if somebody did a detailed study.
Brett Bellmore - October 15, 2009 at 4:17 am
\”politically charged ones with a loud-and-loyal constituency, but that are not going to be particularly popular (e.g., right-to-life amendment).\”
Or that ARE particularly popular, (Balanced budget amendment, term limits.) but just not with members of Congress. So they have to be stage managed so that the members who need to can vote for them, without risk of getting that two thirds.
I don\’t think it\’s the two thirds rule or support for the text as it is. I think it\’s that a supine federal judiciary \’amends\’ the Constitution by interpretation whenever Congress really wants something it doesn\’t permit. So Congress doesn\’t need the Article V amendment process anymore.
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