The Road Not Taken

Posted July 30, 2003 at 3:27pm

Since the Constitution was ratified in 1789, tens of thousands of amendments have been proposed. But only 27 have received the two-thirds majority in both houses of Congress and the three-fourths majority of state legislatures necessary for adoption.

The first Congress proposed 12 amendments, but the states ratified only 10, which became the Bill of Rights. One of the failed original amendments — that laws increasing pay for Members can’t take effect until after an election — was adopted as the 27th amendment in 1992.

Only six other proposed amendments have made it through Congress but failed to secure the necessary majority of states. Here’s a look at the six:

1789:

Passed by Congress and sent to states; No record of the number of states that ratified it or why it failed

The first amendment to pass Congress but not be ratified by the states concerned the size of the Legislature and the ratio of representation to the population, according to Kris Palmer’s 2000 book “Constitutional Amendments: 1789 to the Present.” The failed amendment stipulated that “there shall not be less than two hundred Representatives, nor more than one Representative for every 50,000 persons.” Had that proposal become law, the House would have upward of 5,000 Members today, according to Mary Hertz Scarbrough, who wrote a chapter in the book about amendment proposals. She added that current House Members represent at least 500,000 constituents each. In 1911, the House was set at 435 Members, and all proposals to change that have failed.

1810:

Passed by Congress and sent to states; 12 states ratified (13 needed)

The second unsuccessful amendment sought to limit titles of nobility. It fell one state short of ratification. The founders believed this amendment was important because they were nervous that foreign powers could seek to influence citizens or officials in exchange for favorable treatment, according to Scarbrough. The proposal states that if U.S. citizens accept gifts or offices from foreign dignitaries, they shall no longer be citizens and will be prohibited from holding “any office of trust or profit.” Because there was no time limit for its ratification, it could technically still be ratified by the states, as was the 27th amendment, if it was approved by 38 states.

1861:

Passed by Congress and sent to states; 2 states ratified (26 needed)

The third to fail was the proposed Corwin Amendment, which prohibited Congress from having the power to “abolish or interfere” with “domestic institutions,” including slavery. The amendment was proposed just before Abraham Lincoln’s March inauguration as House and Senate committees were formed to find a compromise on the issue of slavery. Then-President James Buchanan signed the amendment, an unnecessary step, on his last day in office — a move that “underscored an eagerness to bolster any tenuous chance of North-South reconciliation,” Scarbrough wrote. This failed amendment could also still be ratified by the states because there was no time limit set.

1924:

Passed by Congress and sent to states; 28 states ratified (36 needed)

The fourth amendment not ratified would have given Congress the power to “limit, regulate and prohibit” child labor. Louisiana, Georgia and North Carolina, whose economies relied heavily on child labor, quickly rejected the proposal. Although this amendment had no deadline for ratification, the purpose has largely been achieved by statutes and reinterpretation of the Constitution, according to Michael Lynch in his article “The Other Amendments: Constitutional Amendments That Failed,” and interest has abated.

1972:

Passed by Congress and sent to states; 35 states ratified (38 needed)

The Equal Rights Amendment would have guaranteed equal rights to all U.S. citizens regardless of sex. After a lengthy voyage through Congress, the amendment was more symbolic than anything by the time it was passed to the states, Scarbrough said. Hawaii became the first state to ratify it — 20 minutes after the favorable Senate vote. After the seven-year deadline and a controversial three-year, three-month extension, the proposed amendment formally died June 30, 1982.

1978:

Passed by Congress and sent to states; 16 States ratified (38 needed)

The last failed amendment would have given full Congressional representation to the District of Columbia. It was the most successful of 150 amendments proposed since 1818 to give the District representation in Congress, Scarbrough said. It passed the House 289-127 and the Senate 67-32. When the proposed amendment formally died in August 1985, the states that had voted to ratify were all controlled by Democratic legislatures and had sizable urban and black populations.