Amendments Give Us a “Living Constitution”

Recently, we had a discussion of the Constitution. The commenter said it was obsolete, and we should start over. I said that was dangerous, since today’s public is evenly divided and diametrically opposed. There’s no way we could have a peaceful solution, and would likely end up with a new Constitution that would be totally rejected by half the public. For instance, one side would want to outlaw abortion and establish a religion, and the other side would like to outlaw guns and prevent discrimination against transgendered people.

The answer is to change the Constitution in increments. That’s what the Amendment process is all about. We have changed the original Constitution 27 times (25 if you note that prohibition was enacted by the 18th Amendment, and repealed the 20th).

The Founders encouraged having a “living” Constitution by establishing the first ten Amendments (“The Bill of Rights”), almost immediately. “Freedom of speech” was not in the Constitution. It’s an Amendment. They wanted future generations to be able to make changes—easy enough to be possible, hard enough not to be frivolous. However, most people do not realize that there were originally twelve initial Amendments, not ten.

One of the rejected amendments was designed to restrict salary increases by Congress for themselves. They could raise their pay, but it couldn’t go into effect until after the people voted. The idea was that if the pay raise seemed unreasonable, those representatives who voted for the raise could be removed from office in an election, and the new Congress could vote down the pay increase. While that Amendment was proposed in 1789, it was not ratified until 1992—our newest, established Amendment.

Another Amendment which was proposed in 1789 and not adopted was intended to be “The First Amendment,” but failed to be passed. Here’s the wording:

After the first enumeration 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 not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

The originally proposed Amendment calls for one representative for every 30,000 people. If that were applied, we’d need 11,000 Representatives today, instead of the current 438. But it says once there are 100 Reps, the ratio would be one for every 40,000. That would give us about 8,250. That’s still too many to ever get anything done.

But the Amendment goes on to say that after we reached 200 Representatives, the number could increase to 50,000 per Representative. With 50,000 population per Representative, we’d have 6,600 Representatives. Still unworkable. But it also said, after that, Congress could set the ratio of Representatives per population.

Currently, we have one Representative for approximately 750,000 in population. Only three states have more than their fair share of Representation: Wyoming, Vermont, and Alaska. That’s because they can’t have a fraction of a Representative. Otherwise, we have a fair distribution.

Clearly, the intention of this proposed Amendment was to make sure that a Representative did not have too many people to give appropriate representation. But then, that’s why we have local and State government. We just don’t need the original “First Amendment.”

In 1810, another amendment was proposed–an “Anti-Title Amendment.” It shows how fearful the Founders were of royalty and nobility. If an American were to be given a title by a foreign country, that individual would lose his or her American citizenship! It was ratified by only 12 States, as of 1812.

In 1861, Ohio Representative Thomas Corwin proposed a “Slavery Amendment,” forbidding the federal government from outlawing slavery. It was ratified by only two States.

In 1926, a “Child Labor Amendment” would allow Congress to make national laws regarding child labor. It was only ratified by 28 States, with 38 needed for adoption.

In 1978, The Washington, DC, “Voting Rights Amendment” would have given the District the same representation as a State. That seems odd, until you realize the population of DC is higher than Vermont or Wyoming. It expired in 1985.

That brings us to the “Equal Rights Amendment (ERA), proposed in 1971, intending to give women equal rights with men.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

“ARTICLE —

“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.

“Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

“Sec. 3. This amendment shall take effect two years after the date of ratification.”

It looked like a “slam-dunk,” but conservative women rallied to argue that the ERA would “disadvantage housewives, cause women to be drafted into the military and to lose protections such as alimony, and eliminate the tendency for mothers to obtain custody over their children in divorce cases.”

Meanwhile, some labor groups feared that it would damage rights of low-paid women, however, labor leaders and women’s lawyers changed their minds and later supported the ERA.

As noted in the wording, States would have to adopt the Amendment within seven years. That deadline was extended to 1982, although the legality of that extension was questioned. Now, there is talk of trying to adopt a new deadline, since the Virginia legislature recently made the Commonwealth the 38th State to ratify.

So we have 27 Amendments that have been adopted, and another seven that have failed. Obviously, it’s not impossible to make changes to the U.S. Constitution. While it is an old document, it can be changed, if there is enough public will to do so.

There has been talk of changing Article II of the Constitution, regarding the Electoral College. One proposed change would be to number electors based on Representatives, not Representatives plus Senators. By including the number of Senators, small States have an unfair advantage. Another option would be to require the Electors to vote proportionally, instead of winner-take-all. That change would make it less likely that networks could “call an election” before the 11 o’clock news—but it would make the process more reflective of the will of the people.