Amending the United States Constitution: A New Generation on Trial

  • Stephen L. Schechter


The winter of 1973 marks an important watershed in the history of amending the Constitution of the United States. Between 1961 and 1971 the Constitution had been amended four times, achieving an adoption record which had been surpassed only twice in American history (during the formative decade of the 1790s and the Progressive years, 1913–20). Moreover, there seemed every indication that the flurry of constitutional amendments would continue into the 1970s. On 22 March 1972, Congress proposed the Equal Rights Amendment (ERA) and within twelve months that amendment had been ratified by thirty state legislatures, with only eight more required for adoption.


Presidential Election American Politics State Legislature United States Constitution Constitutional Amendment 


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  1. 3.
    Cf. Martin Diamond, Winston Mills Fisk and Herbert Garfinkel, The Democratic Republic: An Introduction to American National Government, 2nd edn, (Chicago: Rand McNally, 1970) pp. 118–19.Google Scholar
  2. 5.
    The so-called ‘Article V convention method’ for proposing amendments is perhaps the thorniest of all the procedural issues concerned with the amendment process. On one side, there are those who view it as an unthinkable alternative that was never seriously intended to be used and would undoubtedly result in a ‘runaway’ convention. Representative of this view is Charles Black, ‘Amending the Constitution: A Letter to a Congressman’, Yale Law Journal (December 1972): 190. On the other side are those who see the convention method as a serious alternative mode for proposing amendments that was intended by the framers for use as a counterweight to Congress. This latter view would urge adoption of limited convention procedures by Congress to take the uncertainties out of calling such a convention. Representative of this view is Senator Sam Ervin (D-N. C.) who introduced measures in 1967, 1971 and 1973 for a federal constitutional convention procedures act. See Sam Ervin, ‘Proposèd Legislation to Implement the Convention Method of Amending the Constitution’, Michigan Law Review (March 1968). Also see Ann Stuart Diamond, ‘A Convention for Proposing Amendments: The Constitution’s Other Method’, in Stephen L. Schechter (ed.) The State of American Federalism: 1980, a special issue of PUBLIUS: The Journal of Federalism 1, nos. 3–4 (Summer 1981): 113–46.Google Scholar
  3. 7.
    Alexander Hamilton, John Jay, and James Madison in Clinton Rossiter (ed.) The Federalist Papers (New York: New American Library, 1961) Federalist Paper no. 43, pp. 278–9.Google Scholar
  4. 10.
    Clement Vose, Constitutional Change: Amendment Politics and Supreme Court Litigation since 1900 (Lexington, Massachusetts: D. C. Heath, Lexington Books, 1972) p. 341.Google Scholar
  5. 17.
    In Dillon v. Gloss, the US Supreme Court held that Congress has the power to set ratification deadlines within ‘reasonable limits’. 256 US 368 (1921). In Coleman v. Miller, 307 US 433 (1939) the Court held that it is up to Congress to decide what ‘reasonable’ means. In Coleman v. Miller, the Court indicated that Congress also has the ultimate authority to decide whether a state may ratify an amendment after previously rejecting it, and whether a state may rescind a ratifying vote. (307 US 433 (1939) p. 450.) But the Court has never issued a ruling on this question. Moreover, Congress has not been consistent in its decisions on this question. According to one Congressional Quarterly study: At the direction of Congress, the secretary of state counted the ratifications of the 14th Amendment by Ohio, New Jersey and Oregon despite votes by the three state legislatures to withdraw the ratification. But the secretary of state apparently accepted North Dakota’s rescission of its ratification of the 15th Amendment. (Guide to the US Supreme Court [Washington, DC: Congressional Quarterly, Inc., 1979], p. 151). The appropriate documents on the issue of state rescission are collected in ERA: May a State Change Its Vote? by Samuel S. Freedman and Pamela J. Naughton (Detroit, Michigan: Wayne University Press, 1978).Google Scholar
  6. 20.
    Alan P. Grimes, Democracy and the Amendments to the Constitution (Lexington, Massachusetts: D. C. Heath, Lexington Books, 1978). Grimes’ classification of sectional support is utilised in column 8 of Table 7.3 in this text.Google Scholar
  7. 22.
    Ann Diamond, ‘A Convention for Proposing Amendments’, p. 130. Also see Edward S. Corwin and Mary Louise Ramsey, ‘The Constitutional Law of Constitutional Amendments’, Notre Dame Lawyer (1951): 144. 23. Article VII provides: ‘The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same’. The decisive difference between this method and the amendment method is not the numbers by which each take effect but the scope of their reach. On ratification, the new Constitution embraced only consenting states, while amendments to it reach ratifying and non-ratifying states alike.Google Scholar
  8. 24.
    State traditions of constitution-making and constitutional change can be an altogether different matter, though most state traditions can be viewed as variations of the Whig, Federalist, and managerial conceptions of constitutionalism found in the US Constitution. See Daniel J. Elazar, ‘The Principles and Traditions Underlying American State Constitutions’, in Daniel J. Elazar (ed.) State Constitutional Design in Federal Systems, a special issue of PUBLIUS: The Journal of Federalism 12, no. 1 (Winter 1982) 11–26.Google Scholar
  9. 27.
    The Constitution does, indeed, have a ‘fiscal scheme’. See Kenneth Van Dam, ‘The American Fiscal Constitution’, University of Chicago Law Review 44 (Winter 1977). Also see US Congress, Committee on the Judiciary, Balanced Budget — Tax Limitation Amendment, Rept. 151 to accompany S. J. Res. 58, 97th Congress, 1st session, 1981.Google Scholar
  10. 31.
    Joseph Gusfield, Symbolic Crusade: Status Politics and the American Temperance Movement (Urbana, Illinois: University of Illinois Press, 1963) pp. 7–8.Google Scholar
  11. 37.
    Daniel J. Elazar, The Generational Rhythm of American Politics’, American Politics Quarterly 6, no. 1 (January 1978) 55–94.CrossRefGoogle Scholar
  12. 38.
    Ibid, p. 68. The quotations in this and the following two paragraphs are taken from the discussion at pp. 68–70.CrossRefGoogle Scholar
  13. 39.
  14. 40.
  15. 47.
    Clement Vose, ‘When District of Columbia Representation Collides With the Constitutional Amendment Institution’, Stephen Schechter (ed.) The State of American Federalism: 1978, a special issue of PUBLIUS: The Journal of Federalism 9, no. 1 (Winter 1979) 119.Google Scholar
  16. 50.
    E. E. Schattschneider, Party Government (New York: Rinehart & Company Inc., 1942) p. 48.Google Scholar
  17. 51.
    For an historical background of the ERA, see Janet K. Boles, The Politics of the Equal Rights Amendment (New York: Longman, 1979).Google Scholar
  18. 52.
    For background on the balanced budget amendment, see US Senate Committee on the Judiciary Report, Balanced Budget — Tax Limitation Amendment (1981).Google Scholar
  19. 54.
    Bill Keller and Nadine Cohodar, ‘Liberal Lobby Strengthened’, Congressional Quarterly Weekly Report, 16 October, 1982, p. 2678.Google Scholar

Copyright information

© Keith G. Banting and Richard Simeon 1985

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  • Stephen L. Schechter

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