The Phenomenon of Perpetually Pending Amendments

We're in a bit of a lull in regards to news on proposed Constitutional amendments in Congress. But re-reading Senator Feingold's proposed amendment on filling Senate vacancies made me realize something: his amendment has no time-expiring provision in it! Most amendments proposed by Congress include a clause that negates the amendment if the states do not ratify it within a certain period of time. For example, Section 2 of the 22nd Amendment (limiting the President to two elected terms in most cases) reads: "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 to the States by the Congress."

The reasoning for this is that once an amendment is proposed by Congress the states have an infinite amount of time to ratify it. So say an amendment is one state short of being ratified. 50 years down the road, one more state approves it and it's ratified. But in those 50 years the political climate in the other states who ratified it has changed drastically to be against the amendment.

Note that the states could technically still ratify any amendment past its deadline, and that amendment would become a part of the Constitution. However, this amendment would be inoperative and would be entirely meaningless.

The Constitutionality of time-expiring clauses was upheld by the Supreme Court in the case Dillion v. Gloss 256 U.S. 368 (1921).

There are several Constitutional amendments that have been proposed by Congress but not ratified by the States and do not have a time-expiring clause in their language. These amendments can be ratified by the State legislatures at any time and become valid and operative amendments to the Constitution (see Supreme Court case Coleman v. Miller [307 U.S. 433 (1939)]), however most of them are moot at this point. These amendments are as follows:

ARTICLE THE FIRST (a.k.a. the Congressional Apportionment Amendment): This was the first on a list of twelve amendments proposed by the 1st Congress (the second of which became the 27th Amendment and the last 10 became the Bill of Rights). If ratified, it would regulate the sizes of Congressional districts for the House of Representatives; however it became moot once the smallest Congressional district (WY-AL) grew to more than 50,000 people (the Wyoming-At Large district contains more than 500,000 people today).

TITLES OF NOBILITY AMENDMENT: Stipulates that a United States citizen must forfeit his citizenship should he accept any title of nobility from a foreign country. While at one point close to being ratified after its 1810 proposal, there is no longer any interest in dusting this one off.

CORWIN AMENDMENT: Would prohibit any amendment to the Constitution granting more powers to Congress over the States, as well as preventing any future amendment abolishing slavery. The latter half of this amendment became moot with the passage of the 13th Amendment.

CHILD LABOR AMENDMENT: Would allow Congress to pass laws regarding child labor. This became moot once the Supreme Court reversed their ruling on child labor laws, making them now constitutional.

**EQUAL RIGHTS AMENDMENT**: Would require that no law passed by the United States or any State could discriminate on the basis of sex. While Congress passed the amendment with a time-restricting clause, this clause was not technically in the text of the amendment itself. Some Constitutional scholars thus question the validity of this amendment's expiration date.

My next post will be on the Curious Case of the Twenty-Seventh Amendment. Proposed to the States by the very first Congress in 1789, it was not ratified until more than 200 years later in 1992. It's a fascinating history.