Twenty-Eighth Amendment

New Posts will be made Weekly

2009-03-20T09:00:00.001-07:00

As Spring Break comes to a close and I get ready to go back to school, I will not have time to update this blog every day. Also, there will not be relevant news everyday anyway. I promise at least one new post a week, to be made probably on Sundays.

The Phenomenon of Perpetually Pending Amendments

2009-03-18T14:42:00.000-07:00

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.

Rohrer: Join Me For a 10th Amendment Rally Video

2009-03-17T11:30:00.001-07:00

Here is the video of Pennsylvania legislator Rohrer calling Pennsylvanians to participate in his 10th Amendment rally held yesterday, March 16.

10th Amendment Rally Yesterday in Pennsylvania

2009-03-17T07:49:00.000-07:00

Yesterday, hundreds of conservative protesters rallied at the Harrisburg, PA state capitol demanding an end to the federal government's usurpation of states' rights (pictured). Called a "Tenth Amendment Rally," it mirrored similar Tenth Amendment-centered protests in New Hampshire and Oklahoma earlier this month. The resolution of the Pennsylvania rally, and the resolution that was introduced into the Pennsylvania legislature, read in part:

When our country was founded, our Fathers envisioned a form of government in which the federal government served as an agent of the states—not the states serving as an agent of the federal government...This rally seeks to remind federal officials of their constitutional limitations while affirming Pennsylvania's 10th Amendment Rights.

Similar resolutions passed in the Oklahoma legislature and failed in the New Hampshire legislature. 17 other states have introduced resolutions like these.

For those who may not remember, the 10th Amendment to the United States Constitution reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

States' rights advocates are against the encroachment of the federal government on what should be powers delegated to the states; their recent aggravation is with Obama's financial stimulus package. Although I side with Obama on the stimulus package, in many other regards I agree with these protesters.

When Congress passes a law that infringes on states' rights, they have to make it optional for the states to comply. The catch is that if a state does not comply, it will typically lose massive amounts of federal government. For example, although each state may set its drinking age however it wants, the federal government mandates that each state set its drinking age to 21 or higher. Any state with a drinking age lower than 21 loses funding for highways, and of course, all states have their drinking age at 21. In effect, the states are financially blackmailed.

Another hideous example is the No Child Left Behind Act, which encroaches on a state's right to set its own standards regarding education.

However, it is important to not forget the importance of the 14th Amendment, which, ratified in 1868 just after the Civil War, dramatically altered the relationship between the states and the federal government. Citing only the relevant sections, it reads:

Section 1. ...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Thus it is worth noting that not every issue is a states' rights issue. Civil liberties cannot be curbed by any state, so those who think that civil rights issues like abortion and gay equality should be decided by the states are in the wrong, in my opinion.

There should be a more perfect balance between state power and federal power. The smaller the body of government, the more direct influence each constituent has on it. Because the federal level of government, serving hundreds of millions of people over a wide variety of landscapes (urban, suburban, rural, industrial, etc.) cannot please everyone with one sweeping bill, state-level governments that better know the political and physical climate of their individual states can pass their own laws that better serve their own people, in most regards anyway.

Resources:

Article: Human Events.com, "New Hampshire's 10th Amendment Rally: 'Armed but Peaceful'"

Blog: Capitol Ideas with John L. Micek, "10th Amendment Rally"

Press Release: Penn. Legislator Samuel Rohrer on the 10th Amendment Resolution and Rally

The ELECT Act and the Judiciary Committee Meeting on S.J. Res. 7

2009-03-16T12:20:00.000-07:00

Last Wednesday, March 11, the Senate and House Judiciary Committees held a joint hearing on S.J. Res. 7 and H.J. Res. 21 (Sen. Feingold's amendment regarding Senate vacancies, please see my previous post for more information). Most of the testimony came out in favor of the amendment, however it is worth reading the statements of Vikram Amar (a professor of law at the University of California) and Rep. Aaron Schock (R-IL, pictured). Both are in favor of the Ethical and Legal Elections for Congressional Transitions (ELECT) Act (H.R. 899), introduced by Schock himself, a regular bill (not amendment) which would manage to have the same effect as Feingold's proposed amendment but without having to actually change the Constitution. It also addresses several weak areas in Feingold's amendment.

For one, Feingold's proposed amendment does not set a timeframe for when the special election must occur. A state short on funds that does not, or cannot, run a special election at the moment of a Senate vacancy would still be allowed to wait the two years for the next Congressional election. In the meantime, instead of being served by an appointed Senator, the state would continue to have a vacant seat. Is having a vacant seat for two years truly better than having an appointed Senator for two years? I don't think so.

Also, as I explained in my previous posting, the amendment does not address what would happen in an emergency where a large number of Senate seats needs to be replaced quickly to ensure our government remains operative in a time of crisis.

Both these objections were put forth by Amar and Schock. They both defend the Constitutionality of the ELECT Act by citing Article I, Section 4, Clause i which states that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators."

Therefore, while Congress does not have the authority to prevent a governor from appointing a replacement (only the state legislature can do that), Congress does have the ability to determine when and how special elections will be held to fill Senate vacancies.

The ELECT Act does just this. It uses Congress's power under Art. I, Sec. 4 to mandate that special elections be held within 90 days of a Senate vacancy. In the meantime, the governor can elect someone to hold the seat so it does not remain vacant for too long. This appears to give us the best of both worlds: No Senate seat remains vacant, but all appointed Senators must be elected at some point within 90 days after a Senate seat is vacated.

The ELECT Act also provides a system whereby special elections are funded, having the federal government take up some of the costs of running an election. Most of the objection towards Feingold's amendment is because of the costliness of running an election. The ELECT Act also satiates this opposition.

None of the testimony presented at the hearing seems to be able to say why the ELECT Act would not suffice.

It is therefore that I support the ELECT Act over Feingold's proposed amendment, as it better addresses the issue at stake and takes into account several problems that Feingold's Amendment does not. I would advise my readers to contact their Senators and their Representative to urge them to vote in favor of the ELECT Act and not Feingold's amendment.

Resources:

Joint Judiciary Committee Hearing on S.J. Res. 7 and H.J. Res. 21

ELECT Act (H.R. 899) bill text, summary, and details

An Overview of the Senate Vacancies Amendment

2009-03-16T06:58:00.000-07:00

An amendment to change the system of how vacancies in the Senate are filled was introduced by Senator Russ Feingold (D–WI, pictured) on January 11 in the Senate and Februrary 11 in the House. This amendment would alter the section of the 17th Amendment which stipulates:

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

In short, each state may determine how its Senate vacancies are filled, so long as there is an election at some point. The norm is to have the governor appoint a replacement and then have an election to fill the seat at the next Congressional election (held every two years). Only a few states (such as Massachusetts and Feingold's state of Wisconsin) mandate immediate special elections to fill Senate vacancies without having the governor appoint a replacement.

The point of controversy is that Senators who were never elected could be serving for up to two years, and there is much potential for back-room dealings such as the recent spat involving then-Governor Rod Blagojavech of Illinois and his appointment of Roland Burris to fill Obama's empty Senate seat.

The Senate version (S.J. Res. 7) and House version (H.J. Res. 21) of the proposed amendment read as follows:

Section 1. No person shall be a Senator from a State unless such person has been elected by the people thereof. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies.

Section 2. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as a part of the Constitution.

There are 7 co-sponsors in the House and 3 in the Senate: Mark Begich (D-AK), Dick Durbin (D-IL), and John McCain (R-AZ).

Labeled a "perfection amendment" by Feingold (or what I would call a "housekeeping amendment"), this proposed amendment would not drastically alter the Constitution, nor is this a partisan amendment (like the Federal Marriage Amendment, for example). It is for these reasons that this amendment actually has a decent chance of being ratified and will probably be the most closely watched on this blog.

In his press conference introducing the bill to the House on February 11 (video at the end of this post), Feingold calls the current method of filling vacancies outlined in the 17th Amendment "a constitutional anachronism" that is "a carryover from the original Constitution that allowed the governor to make temporary appointments until the state legislature could choose a Senator." He also stresses that this amendment would put in place the same process used to fill House vacancies.

I agree with the concept of the amendment; however, I think it should be worded to mandate a special election within so many days of the seat being vacated (say, 90 days). In the meantime, the governor should make a temporary appointment. The reason being is that, while the House may replace its members via special election, that body also has 435 members. If the House is missing a few members for the couple months it takes to organize, campaign for, and hold an election, it can still function normally. But, the Senate, with only 100 members really needs its full membership to conduct its business as smoothly as possible. Also, the amendment makes no provision in the event of an emergency whereby a large number of Senators are killed in, say, a terrorist attack. Should an unthinkable scenario like this occur, we would be much at risk as we would not be able to sustain our continuance of government.

Representative Aaron Schock (R–IL) has addressed these problems by introducing a bill (not a proposed amendment) that would tackle the issue of needing temporary gubernatorial appointments. There will be more on this in my next post, as well as a discussion of the joint Judiciary Committee hearing held last Wednesday to discuss this amendment.

Resources:

H.J. Res. 21 Summary, Text, and Information

S.J. Res. 7 Summary, Text, and Information

Press Release: Feingold to Introduce Constitutional Amendment Ending Gubernatorial Appointments to Senate Vacancies

Video: Feingold on Constitutional Amendment Ending Gubernatorial Appointments to the Senate

An overview of the D.C. Voting Rights Amendment

2009-03-15T15:52:00.000-07:00

On February 25, 2009, Senator Lisa Murkowsi (R–AK, pictured) introduced a Constitutional amendment allowing the District of Columbia to elect a voting representative to the House of Representatives. The District of Columbia, the location of our nation's capital, is not a state nor is it part of any state. Thus the residents of Washington, D.C. are not represented in Congress, except for one delegate in the House of Representatives who may vote so long as her vote does not determine the outcome of a bill's passage.

A law with the same effect has been passed by the Senate and is currently stalled in the House of Representatives due to debate on an amendment to the law regarding gun control in D.C. Obama has said he would sign such a law if passed by Congress. The problem is if Congress has the authority to grant the District a voting representative in the first place. Article I, Section 2 of the Constitution states in part that:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States...

Note the use of the word "States." The District is not a state, thus its residents, according to this provision of the Constitution, are not able to vote for Representatives. However, those in favor of the law justify its Constitutionality by citing the District Clause (Art. I, Sec. 8), granting Congress the authority "To exercise exclusive legislation in all cases whatsoever, over such District..." Does "all cases whatsoever" include the right to bypass the "several States" requirement in Article I? The Congressional Research Service (CRS) says that they do not. They cite the Supreme Court case National Mutual Insurance Co. of the District of Columbia v. Tidewater Transfer Co. 337 U.S. 582 (1949) which holds that Congress's power in the District clause does not grant them the authority to change the structure of the federal government.

I agree with the finding of the CRS and the Supreme Court of the United States (SCOTUS). The District Clause allows Congress to act in a capacity similar to a state legislature, passing laws that are applied within the District. This clause should not allow Congress to change the structure of the federal government. Also, the District clause is not an amendment to the Constitution, so there is no reason to believe that it would over-ride Art. I, Sec. 2 which specifies that only states may send Representatives to Congress. I agree with Murkowski, that while DC should be entitled to voting representation, this would have to be done via the amendment process unless DC were made a state.

Making DC a state (excluding federally owned land), would probably be in fact the best solution to this dilemma. This would only require a law passed by Congress and not a Constitutional amendment. Being incredibly Democratic, DC would be sure to elect two Democratic senators and re-elect its Democratic Representative (only this time to a position of voting capacity). The Democratic majority in Congress should be jumping on this plan. And while DC is tiny, and would be the smallest

state by area, it would still have a larger population than Wyoming and Alaska. This would also grant DC representation in the Senate, which the proposed law and Constitutional amendment does not provide for.

The only other solution would be for DC to be retroceded to another state, probably Maryland. However, according to the Constitution this would require the consent of both Congress and the legislature of the state receiving DC. No state would probably want to take on the burden of maintaining the city.

Hopefully this post has given you an overview of the DC Voting Rights issue currently at play in the 111th Congress.

Note that I cannot at the moment find any updates regarding this amendment.

Resources:

CRS Report: The Constitutionality of Awarding the Delegate for the District of Columbia a Vote in the House of Representatives or the Committee of the Whole

Press Report: Sen. Murkowski introduces D.C. Voting Rights Constitutional Amendment

How the Constitution is Amended

2009-03-15T15:20:00.001-07:00

First off, welcome to Twenty-Eighth Amendment, the blog that will be following and discussing submitted new amendments to the United States Constitution. I will also discuss any news regarding previously ratified or proposed Constitutional amendments.

To begin this blog, I will describe the process by which the Constitution is amended. This process is outlined in Article V of the document, which reads:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

So to explain what this means: Each submitted amendment must go through a two-step process before becoming a bona-fide part of the United States Constitution: proposal and ratification. Each step in this two-step process has two ways that it can be achieved.

STEP ONE: Proposal

1) 2/3 of each House of Congress (the House of Representatives and the Senate) passes the proposed Amendment.

2) 2/3 of the State Legislatures call for a Constitutional Convention to propose amendments. (This has never happened before; therefore there is no precedent on how such a convention would operate.)

STEP TWO: Ratification

1) 3/4 of the state legislatures approve of the amendment.

2) 3/4 of state conventions approve of the amendment (the State legislature would determine how such a convention would be elected and assembled. Only the 21st Amendment has been ratified in this manner. Unless otherwise specified, all proposed amendments are sent to the state legislatures.)

The United States Constitution has been amended twenty-seven times, the last being on May 7, 1992.